43 Kan. 237 | Kan. | 1890
F. W. Fulker was prosecuted in the district court of Marshall county upon an indictment charging him with unlawfully selling intoxicating liquors at the town of Oketo, in Marshall county. The jury returned a verdict finding him guilty on five counts of the indictment, and on his motion to set aside the verdict the conviction was sustained as to the first two counts, and set aside as to the other three. The judgment of the court was that he should pay a fine of $100 and be imprisoned in the jail of Marshall county for thirty days on the first count, and a like sentence for the conviction under the second count was pronounced. The defendant appeals, and alleges that the court erred in overruling his motion for a new trial.
The testimony offered on the trial showed that the defendant sold to numerous persons what were called “prize packages,” being boxes about twelve inches square, in each of which there was a jug of whisky. These boxes were shipped from Nebraska, and were sold in Kansas by the defendant in the same form and condition in which they were shipped. The defendant was in charge of the railroad depot and express office at Oketo, and the boxes were shipped by express from Blue Springs, Nebraska. Part of them, at least, were consigned by “ M. L. R.” to “ M. L. Rawling,” but who “ M. L. R.” was is not very clearly shown. Some of those who applied to purchase liquor from the defendant presented orders, which purported to come from Rawling and from a man called “Ax;” but the testimony indicates that the defendant sold to all who applied, regardless of orders, and that many sales were made when no such orders were presented.
At the close of the testimony the defendant asked the court to instruct the jury that, if packages containing intoxicating liquors were sold by the defendant in the original packages as delivered for shipment in Nebraska, and as received by him in Kansas, such sales were not in violation of the constitution and laws of Kansas relating to the sale of intoxi
“I further instruct you that if you believe from the evidence, beyond a reasonable doubt, the deféndant knowingly sold intoxicating liquors at the place described in the complaint, and within two years prior to the 22d day of December, 1888, it would be no defense against such sales for the defendant to show by evidence that such intoxicating liquor so sold by him had been imported from another state over some route ordinarily used for the transportation of merchandise, in inclosed boxes, or packages, and that such intoxicating liquors had been so sold by the defendant in the original boxes or packages in which they had been placed for shipment in another state, without breaking said boxes or packages.”
It is argued that the unrestricted sale of liquors in the form in which they are shipped from another state is an essential element of traffic, and that as the law of Kansas forbids such a sale, it constitutes a direct burden on interstate commerce. It must be remembered that our law does not absolutely forbid the use or sale of intoxicating liquors. They may not only be freely introduced and stored, but they may be sold for
“In conferring upon congress the regulation of commerce, it was never intended to cut the states off from legislating on all subjects relating to health, life and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation in a great variety of ways may affect commerce and persons engaged in it without constituting a regulation of it, within the meaning of the constitution.” (Sherlock v. Alling, 93 U. S. 99.)
See also Willson v. Blackbird Creek, 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; Cooley v. Board of Wardens, 12 How. 299; Osborne v. Mobile, 83 U. S. 479; Munn v. Illinois, 94 id. 113; Hall v. De Cuir, 95 id. 485; Pound v. Turck, 95 id. 459; Transportation Co. v. Wheeling, 99 id. 273; Ferry Co. v. East St. Louis, 107 id. 365; Morgan v. Louisiana, 118 id. 455.
If the point contended for, that liquor may be shipped from another state to any point in Kansas and there sold in the
“It would seriously impair the efficiency of, if not practically destroy, our prohibitory law. In the one case, ‘ original packages,’ large and small, might become the ordinary merchandise of every corner grocery in the state. In the other case, every person who desired to engage in the saloon business could become at once an importer of‘original packages,’ from the size of a pint flask to that of the jugs of whisky imported from Nebraska in this case, and thus be able to ply his business without let or hindrance from our prohibitory law.”
In the License Cases, 5 How. 608, where the New Hampshire case was under consideration, Mr. Justice Catron remarked :
“ To hold that the state license law was void as respects spirits coming in from other states as articles of commerce, would open the door to an almost entire evasion, as the spirits might be introduced in the smallest divisible quantities that the retail trade would require, the consequence of which would be that the dealers in New Hampshire would sell only spirits produced in other states, and that produced in New Hampshire would find an unrestrained market in the neighboring states having similar license laws to those of New Hampshire.”
Every state in the Union has enacted laws to protect society from the admitted evils of the liquor traffic. Some have low license, some have high license, some have local option, and others have taken the advanced position of Kansas, to prohibit its manufacture and sale except for certain purposes generally regarded as beneficial. In many, if not all, of the license states there are prohibitory features in the regulations imposed. Some of them are that liquor cannot be sold to minors or drunkards, nor sold on Sundays, election days, or at night, nor sold at a place adjoining or near to churches and school
It should also be stated that the regulations imposed by Kansas do not conflict with any act of congress upon the sub- ' ject. As the power exerted by the state in this instance operated on interstate traffic, and as it is a local regulation to protect the health, morals, and safety of the people, is it not valid in any view, in the absence of congressional legislation upon the subject? It is said that, as to all subjects of a national character, and which require uniformity of regulation, the silence of congress is a declaration of its purpose that commerce in that commodity shall be free; but as to subjects which are local in their nature, and can be best provided for by local regulation, the inaction of congress does not preclude the exercise of power by the state, but her laws enacted in good faith would stand until they were displaced by federal legislation. (Mobile v. Kimball, 102 U.S. 691, 697.)
“ The power to regulate commerce embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity which alone can meet the local necessities of navigation.”
And, in speaking of the pilot law, it was decided that it was local, and not national; and that it was a subject likely to be best provided for by such systems or plans of regulation as the legislative discretion of the several states should deem applicable. In Case of the State Freight Tax, 15 Wall. 279, it was said:
“Cases that have sustained state laws alleged to be regulations of commerce among the states, have been such as related to bridges or dams across streams wholly within a state, police or health laws, or subjects of a kindred nature, not strictly commercial regulations. The subjects were such as in Gilman v. Philadelphia, it was said, ‘ can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively.’ ”
Now we have seen that the police laws for the control of the liquor traffic, enacted with a view to guard the health, morals and safety of the people, differ wddely in the several states, each state deciding for itself the policy to be pursued, and providing what it is deemed will best promote the public welfare; and, as above indicated, it is a subject that “can be best regulated by rules and provisions suggested by the varying circumstances of different localities.” In Morgan v. Louisiana, 118 U. S. 455, it is decided that a system of quarantine laws established by the statutes of Louisiana was a rightful exercise of the police power; and although some of the rules
“No doubt they believed that the power to do this belonged to the states; or, if it ever occurred to any of its members that congress might do something in that way, they probably believed that what ought to be done could be better and more wisely done by the authorities of the states, who were familiar with the matter.”
Is this remark not properly applicable to state legislation concerning the liquor traffic ? May it not properly be said that the omission of congress to provide regulations concerning the traffic was because they “believed that the power to do this belonged to the states,” and could be done by them better and more wisely, because they were familiar with the matter ? This view is supported to some extent by the following cases: Willson v. Blackbird Creek, 2 Pet. 245; Gibbons v. Ogden, 4 Wheat. 1; Gilman v. Philadelphia, 3 Wall. 713; Peik v. Rly. Co., 94 U. S. 178; Munn v. Illinois, 94 id. 135; Escanaba Co. v. Chicago, 107 id. 678; Transportation Co. v. Parkersburg, 107 id. 701; Cardwell v. Bridge Co., 113 id. 205; Hamilton v. Vicksburg, 119 id. 280; Huse v. Glover, 119 id. 546; Smith v. Alabama, 124 id. 465. One of the latest cases which treats upon the subject is Bowman v. Chicago &c. Rld. Co., 125 U. S. 482, where the doctrine previously announced, that the non-action of congress respecting foreign commerce is to be taken as a declaration that the importation of articles into the state shall be unrestricted, is recognized. It is there said: “ The power conferred upon congress to regulate commerce among the states is indeed contained in the same clause of the constitution which confers upon it power to regulate commerce with foreign nations;” but in that connection it is also stated that “the same necessity perhaps does not exist equally in reference to commerce among the states.”
“Laws which concern the exterior relations of the United States with other nations and governments are general in their nature, and should proceed exclusively from the legislative authority of the nation; . . . and yet in respect to commerce among the states it may be, for the reason already assigned, that the same inference is not always to be drawn from the absence of congressional legislation as might be in the case of commerce with foreign nations. The question, therefore, may be still considered in each case as it arises, whether the fact that congress has failed in the particular instance to provide by law a regulation of commerce among the states is conclusive of its intention that the subject shall be free from all positive regulation, or that, until it positively interferes, such commerce may be left to be freely dealt with b.y the respective states.”
This case is certainly not an authority that a reasonable regulation of a state, enacted to promote the peace, morals, and health of its people, and which somewhat restricts interstate commerce, should be held void. It would seem that the question, so far as interstate commerce is concerned, is regarded by the court as an open one, to be determined from the circumstances of each case as it arises. Is not a law such as that in question, and for the reason mentioned, within the police power of the state, to be exercised until congress should provide to the contrary? We need not enter into an analysis of the numerous cases decided by the supreme court of the United States upon this subject, nor upon an extended discussion of the principles involved. There is a decision of that court which is directly in point upon the question before us, and must be held as decisive of the case. In Pierce v. New Hampshire, 5 How. 504, the defendant was indicted and convicted for unlawfully selling a barrel of gin, which he purchased in Boston, transported to Dover, New Hampshire, and there sold the same in the identical form in which it was carried to that state from Massachusetts. It was urged there, as here, that as the liquor was transported
Much reliance is placed upon what is said by the court in the case of Bowman v. Rly. Co., supra, and it must be conceded that it furnishes considerable ground for the argument made in behalf of the appellant in this case. The question presented there, however, was entirely different from the one before us. The state of Iowa attempted, by an act of its leg-' islature, to exert power over persons and property beyond the limits of that state. It sought to prohibit common carriers from bringing liquors from a point outside of the state to a point within the state, unless they had been provided with written evidence of the right of the consignee to sell the same when it reached the state. It is, therefore, seen that it was a regulation directly affecting interstate commerce, and an effort to give the same effect beyond' the territorialy limits of the state. It cannot be regarded as an authority upon a question relating to an exercise of the police power of the state over persons and property within its own limits. The writer of the opinion is careful to distinguish it from the License Cases; and to prevent any misconception upon that point he states in the concluding part of the opinion that “it is not necessary now to express any opinion upon
In the case of Mobile v. Kimball, 102 U. S. 691, as well as some other cases, the doctrine of the License Cases was referred to approvingly.
The precise point we are considering was before the supreme court of Iowa in three recent cases, in each of which the License Cases were followed, holding that intoxicating liquors are subject to the police power of the state, and that a regulation of their sale in original packages, or otherwise, when they arrive in the state, does not violate the provision vesting the commercial power in the general government. (Collins v. Hills, 41 N. W. Rep. 571; Grusendorf v. Howat, 41 id. 573; Leisey v. Hardin, 43 id. 188.)
Our conclusion is that the district court did not err in instructing the jury; and hence its judgment will be affirmed.