State v. J. W. Kelly & Co.

123 Tenn. 556 | Tenn. | 1910

Lead Opinion

Mr. Justice Neil

delivered the opinion of the Court.

In the criminal court of Hamilton county, on the 1'Oth day of February, 1910, an indictment was found against the defendant, containing the following aver-ments :

“That J. W. Kelly & Company, a corporation, heretofore, on the 10th day of February, 1910,. in the county aforesaid, did unlawfully sell as a beverage, spiritous, vinous, malt, alcoholic, and intoxicating liquors within four miles of a schoolhuose where a school was kept.

“Said sale was made under the following circumstances and conditions, to wit:

“On said date the said J. W. Kelly & Company delivered to the Central of Georgia Railway Company, a common carrier of freight, a package containing five gallons 'Of whisky for shipment to one M. F. Frame in the State of New York, the said M. F. Frame having previously ordered said whisky and having sent the purchase price thereof to the said J. W. Kelly & Company through the United States mail from the State of New York, against the peace and dignity of the State.”

A motion to quash was entered containing four grounds; hut, in the view we take of the case, we need consider only the last, which reads as follows:

“Because said indictment shows on its face that the sale complained of was made by J. W. Kelly & Company in Hamilton county, Tennessee, to M. F. Frame, in the State of New York, pursuant to an order sent from said Frame, in the State of New York, to the defendant, J. W. Kelly & Company, in the State of Tennessee; hence said sale is strictly interstate commerce. And if said act hereinbefore set out should be so construed as to prohibit said interstate sale, then it is void, because in conflict with article 1, section 8, cl. 8, of the constitution of the United States, which provides:

“ ‘Congress shall have power ... to regulate commerce with foreign nations, and among the several States, and among the Indian tribes.’ ”

The case came on for trial on the motion on the 28 d day of July, before the Honerable S. D. McReynolds, Judge, etc., whereupon he sustained the motion and quashed the indictment. From this judgment the State appealed to this court, and has here assigned errors.

The prosecution is based on chapter 1, Acts 1909, the first section of which reads as follows:

“That it shall not hereafter he lawful for any person to sell or tipple intoxicating liquors, including wine, ale, and beer, as a beverage, within four miles of any schoolhouse, public or private, where a school is kept, whether the school be then .in session or not, in this State, and that any one violating the privisons of this act shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine for each offense of not less than fifty dollars nor more than five hundred dollars and imprisonment for a period of not less than thirty days nor more than six months.” ■

The general rule in this State, with regard to the sale of personal property, is that it is complete and the title passes as soon as the parties have agreed upon the terms, and that delivery is not essential to the passing of title. Shaw v. Smith, 9 Yerg., 97; Potter v. Coward, Meigs, 22; Miller v. Koger, 9 Humph, 231, 236; Shaddon v. Knott, 2 Swan, 358, 361-364, 58 Am. Dec., 63; Broyles v. Lowrey, 2 Sneed, 23; Fitzpatrick v. Fain, 3 Cold., 15, 19; Bond v. Greenwald, 4 Heisk., 460, 463; Railroad v. Ford, 11 Heisk., 388, 390; Spurlock v. Gill, 3 Tenn. Cas., 43, 45; Mayberry v. Mill Co., 112 Tenn., 568, 85 S. W., 401; Hardwick v. Can Co., 113 Tenn., 676, 88 S. W., 797. Of course, delivery may be made an express condition, and, under such a contract, the title does not pass until the delivery is made. Barker v. Reagan, 4 Heisk., 590; Barker v. Freeland, 91 Tenn., 112, 117, 18 S. W., 60. ’ So, prepayment of the purchase price may be made a condition with like effect. Harding v. Metz, 1 Tenn. Ch., 610. Likewise, when the goods are to be weighed or measured in order to separate them from a mass of similar kind, or to ascertain the quantity of goods, or amount due for them, the title does not pass until this is done. Williams v. Allen, 10 Humph., 337, 51 Am. Dec., 703; Williams v. Adams, 3’ Sneed, 359, 363, 364; Bush v. Barfield, 1 Cold., 93, 95; Fitzpatrick v. Fain, supra; Bond v. Greenwald, supra; Rawls & Griffis v. Patterson, 1 Baxt., 372; Goodrich v. Edmundson, 1 Tenn. Cas.. 584; Mayberry v. Mill Co., supra. But when the goods are ordered through the mail, it is necessary that the assent of the person from whom the order is made shall be communicated to the person making the order (1 Page on Contracts, sections 41, 43, 44) before the contract is complete. This may be done directly (Trounstine v. Sellers, 35 Kan., 447, 11 Pac., 441; McCormick Harvesting Machine Co. v. Markert, 107 Iowa, 340, 78 N. W., 33; Main v. Tracey, 86 Ark., 27, 109 S. W., 1015), or it may be accomplished by filling the order and delivering the goods to a common carrier to be transported to the person making the order. It is held in this class of cases that the title passes upon the delivery of the goods to the carrier; the carrier, in such case, being treated as the agent of the person making the order. Boyd v. Mosely, 2 Swan, 661; Mississippi Mills v. Bank, 9 Lea, 314, 317; Brooks v. Paper Co., 94 Tenn., 701, 710, 31 S. W., 160; Charles v. Carter, 96 Tenn., 607, 36 S. W., 396; Katzenberger v. Leedom & Co., 103 Tenn., 150, 52 S. W., 35. This rule is a general one. The Mary & Susan, 1 Wheat, 25, 4 L. Ed., 27; The Frances, 9 Cranch, 183, 3 L. Ed., 698; Hatch v. Standard Oil Co., 100 U. S., 124, 25 L. Ed., 554; Kelsea v. Ramsey & Gore Mfg. Co., 55 N. J. Law, 320, 26 Atl., 907, 22 L. R. A., 415, and note; State v. Rosenberger, 212 Mo., 648, 111 S. W., 509, 20 L. R. A. (N. S.), 284, 126 Am. St. Rep., 580. In fact, delivery to the vendee or Ms agent is necessary to effect a transfer of title under a contract of sale which contemplates the sending of the property hy the vendor to the vendee. The Venus, 8 Cranch, 253, 275, 3 L. Ed., 553.

So, in the- case stated in the indictment, the sale became complete when the goods were delivered to the Central of Georgia Railway Company, a common carrier of freight, for shipment to M. P. Frame, in the State of New York. The carrier was then charged with the transportation of the goods. Bennett v. American Express Co., 83 Me., 236, 22 Atl., 159, 13 L. R. A., 33, 23 Am. St. Rep., 774, and note. When a commodity has been delivered to a common carrier to be transported on a continuous voyage or trip to a point beyond the limits of the State where delivered, the character of interstate of foreign commerce attaches. Coe v. Errol, 116 U. S., 517, 6 Sup. Ct., 475, 29 L. Ed., 715; General Oil Co. v. Crain, 209 U. S., 229, 28 Sup. Ct., 475, 52 L. Ed., 754; The Daniel Ball v. United States, 10 Wall., 557, 566, 19 L. Ed., 999; Ex parte Koehler (C. C.), 30 Fed., 867, 869; In re Greene (C. C.), 52 Fed., 113; Houston Direct Navigation Co. v. Insurance Co. of North America, 89 Tex., 1, 32 S. W., 889, 30 L. R. A., 713, 59 Am. St. Rep., 17. And compare Adams Express Co. v. Kentucky, 206 U. S., 129, 27 Sup. Ct., 606, 51 L. Ed., 987; Vance v. Van-dercook, 170 U. S., 438, 444, 18 Sup. Ct., 674, 42 L. Ed., 1100; Heymann v. Southern Ry. Co., 203 U. S., 273, 27 Sup. Ct., 104, 51 L. Ed., 178.

It thus appears that the act by which the acceptance on the part of J. W. Kelly & Co. of the offer made by M. P. Frame was manifested, and which closed the contract, placed the goods — that is, the five gallons of whis-ky — the subject of the contract, under the protection of the interstate commerce clause of the federal constitution, since, upon the reception of the goods by the railway company for the purpose of transportation to the foreign State, the initial step in that transportation was begun. To hold that the defendants became liable to criminal prosecution for so acting would be equivalent of holding that, although the act performed by them was of' a kind sanctioned by the federal constitution, yet they were not personally entitled to protection thereunder, and this would be of itself a violation by the court of that constitution.

It is true, as insisted by the State, that it has the right to prohibit the sale of intoxicating liquors within its borders. Kidd v. Pearson, 128 U. S., 1, 9 Sup. Ct., 6, 32 L. Ed., 346; Bartemeyer v. Iowa, 18 Wall., 129, 21 L. Ed., 929; Boston Beer Co. v. Massachusetts, 97 U. S., 25, 24 L. Ed., 989; Foster v. Kansas, 112 U.. S., 205, 5 Sup. Ct., 8, 97, 28 L. Ed., 629; Schmidt v. Cobb, 119 U. S., 286, 7 Sup. Ct., 1373, 30 L. Ed., 321; note to Rothermel v. Meyerle, 9 L. R. A., 366, and cases cited; Woollen & Thornton on the Law of Intoxicating Liquors, secs. 92 to 116, and authorities cited. The right exists under the police power, and the supreme court of the United States has said that, the independence of the police power and of the commercial power and the delimitation between them must always be recognized and observed. United States v. E. C. Knight Co., 156 U. S., 1, 15 Sup. Ct., 249, 39 L. Ed., 325. It is also said, however, that when the State police power and the national commercial power come into conflict, the former must yield. Arkansas v. Kansas & T. Coal Co., 183 U. S., 185, 189, 22 Sup. Ct, 47, 46 L. Ed., 144. This has been frequently shown in the decisions of that court. Lyng v. Michigan, 135 U. S., 161, 10 Sup. Ct., 725, 34 L. Ed., 150; Leisy v. Hardin, 135 U. S., 100, 10 Sup. Ct., 681, 34 L. Ed. 128; Schollenberger v. Pennsylvania, 171 U. S., 18, 18 Sup. Ct., 757, 43 L. Ed., 49. The United States has recognized intoxicating liquors as proper subject of commerce. Wilkerson v. Rahrer, 140 U. S., 545, 11 Sup. Ct., 865, 35 L. Ed., 572; Bowman v. Chicago & N. W. Ry. Co., 125 U. S., 465, 8 Sup. Ct., 689, 1062, 31 L. Ed., 700; Rhodes v. Iowa, 170 U. S., 412, 18 Sup. Ct., 664, 42 L. Ed., 1088; American Express Co. v. Iowa, 196 U. S., 133, 25 Sup. Ct., 182, 49 L. Ed., 417; Adams Express Co., v. Kentucky, 206 U. S., 129, 27 Sup. Ct., 606, 51 L. Ed., 987; Id., 206 U. S., 139, 27 Sup. Ct., 608, 51 L. Ed., 992; Vance v. Vandercook, 170 U. S., 438, 18 Sup. Ct., 674, 42 L. Ed., 1100; Heymann v. Southern Ry. Co., 203 U. S., 270, 27 Sup. Ct., 104, 51 L. Ed., 178. It is impossible, therefore, for the State to prevent such sales of this product as are made within the protection of the interstate commerce clause of the federal constitution. By the act of congress of August 8, 1890, known as the “Wilson Law” (Act Aug. 8, 1890, c. 728, 26 State. 818 [U. S. Comp, St. 1901, p. 3177]), a very large number of cases were removed from the protection of the interstate commerce law. The Wilson law provides: “That all fermented, distilled or other intoxicating liquors or. liquids transported into any State or territory, or remaining for use, consumption, sale or storage therein, shall upon arrival in such State or territory, be subject to the protection and effect of the laws of such State or territory enacted in the exercise of its police powers, to the same extent and in the same manner as that, if such liquids or liquors had been produced in such State or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” The supreme court said, in passing upon the constitutionality of this act: “The power to regulate commerce is solely in the general government, and it is essentially a part of that regulation to prescribe the means for governing the introduction and incorporation of articles into and with the mass of property in the country or State. No reason is perceived why, if congress chooses to provide that certain distinct subjects of interstate commerce shall be governed by the rule which divests them of that character at an earlier period of time than would otherwise be the case, it is not within its competency to do so.” Speaking to the effect of the Wilson law, the court said, in the same case: “Congress did not use terms of permission to the State to act, but merely removed an impediment to the enforcement of the State laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the State not then possessed, bnt allowed imported property to fall at once upon arrival within the local jurisdiction.” In re Rahrer, 140 U. S., 545, 11 Sup. Ct., 865, 35 L. Ed., 572. The Wilson law, however, does not touch the case presented by the special facts set forth in the indictment we have under consideration. That act has reference only to intoxicating liquors brought into the State. The case before us is one wherein it appears that the liquors were sent out of the State. We have carefully examined Pabst Brewing Co. v. Crenshaw 198 U. S., 17, 25 Sup. Ct., 552, 49 L. Ed., 925; Foppiano v. Speed, 199 U. S., 501, 516, 26 Sup. Ct., 138, 50 L. Ed., 288; Delamater v. South Dakota, 205 U. S., 93, 27 Sup. Ct., 447, 51 L. Ed., 724; R. M. Rose & Co. v. State, 4 Ga. App., 588, 62 S. E., 117; State v. J. P. Bass Publishing Co., 104 Me., 288, 71 Atl., 894, 20 L. R. A. (N. S.), 495, and other authorities to which we were referred by the learned attorney-general, but we think they fail to show that the Wilson law was intended to cover, or that it can be so construed as to cover, such a state of facts as the indictments now before us presents, and the sufficiency of which we are called upon to determine.

After a very extended and careful investigation of the case, we are unable to find any ground on which to sustain the indictment. The act on which it is based, chapter 1 of the Acts of 1909, does not cover such a case as stated in the indictment, or if, by any construction, it could be held to cover such a case, it would he simply inoperative that far, hut would not be otherwise ineffective. The act is good, hut the indictment is had, and, on the grounds stated herein, the judgment of the trial court is affirmed.

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Rehearing

ON REHEARING.

Mr. Justice Neil

delivered the opinion of the Court.

This case was decided and an opinion handed down at a former day of the term. A very earnest petition to rehear has been filed by the learned attorney-general, in which some new authorities are cited and some additional arguments made in support of the indictment. We shall now refer to such of these as we think require special notice.

In State v. Groves, 121 N. C. 632, 28 S. E. 403, cited in the petition, the supreme court of North Carolina reached a different conclusion, upon a state of facts closely similar. The two cases differ principally in the court’s view as to the point of time when the contract was complete. In State v. droves it is said: '“The order of Morris to the defendant was a proposition to buy, and the acceptance of this order constituted a contract/ a sale by the defendant to Morris.” In the case at bar, we placed the closing of the contract at the point when the goods were delivered to the carrier for the shipment to the party in New York. The North Carolina court placed the closing of the contract one step 'further back. We think, as applied to a case in which goods are ordered, this is opposed, not only to former decisions of that court (Railroad v. Barnes, 104 N. C., 25, 10 S. E., 83, 5 L. R. A., 611; Ober v. Smith 78 N. C., 313, and note the grounds of the dissenting- opinion of Rodman, J., in the latter case), but to the weight of authority elsewhere. The decisions upon this subject are referred to in our former opinion. The view taken by the North Carolina court is emphasized by its reference to Pruden v. Railroad Co., 121 N. C., 509, 28 S. E., 349. In that case it appeared that the offer on one side was made by telegraph, and was responded to in the same way, so that there was at once a complete meeting of minds upon all the terms of the contract.

We have not overlooked the fact that in State v. Groves, supra, after the words we have quoted from that opinion, there is added: “And the delivery by the defendant of the keg of whisky to the railroad at its station for shipment to Morris was a delivery, and made Morris the owner of the whisky.” This was an immaterial statement, if the contract was closed by the previous uncommunicated mental assent. The whole passage is: “The order of Morris to the defendant was a proposition to buy, and the acceptance of this order constituted a contract — a sale by the defendant to Morris. Pruden v. Railroad, at this term. And the delivery by the defendant of the keg of whisky to the railroad •at its station for shipment to Morris was a delivery and made Morris the owner of the whisky. Railroad v. Barnes, 104 N. C., 25 [10 S. E., 83, 5 L. R. A., 611]. The railroad, being in such cases the agent of the consignee, a delivery to the railroad was a delivery to Morris.” As we construe the decision, it is that the mere acceptance of the order, the mental assent which was given by Groves, when he received the order constituted the contract of sale, without any communication of that assent to the person making the order, and disregarding the rule that where goods are ordered the contract is not complete until the assent of the person to whom the order is sent is communicated to the person making the order, or until its equivalent occurs, the delivery of the goods to the agent of the person making the order. If the porper construction of State v. Groves be that the contract was not complete until the delivery to the carrier for shipment to a foreign State, and, notwithstanding this fact, the case did not fall within the protection of the interstate commerce clause of the constitution of the United States, it is against the weight of authority, and against sound reason. It is said in State v. Groves: “It is the same in law as if Morris had sent his servant to the defendant, with an order and the money to buy a keg of whisky, and the defendant had let the servant have the whisky; and, if these had been the facts, it could hardly be contended that it was not a sale, though Morris did live in South Carolina. And though the servant carried it over the line into South'Carolina to Morris, could it be that this would be such an interference with interstate commerce as to prevent the defendant from being guilty of a violation of the criminal law of North Carolina?” In this we think there is a failure to note the distinction between delivery to a 'common carrier of goods for shipment to another State, on order, and delivery of goods to a private agent sent to purchase them. The difference is vital, because, when delivery is made to a common carrier for shipment to a foreign State, in response to an order for-the goods, when no other means are taken to .inform the buyer that his order hag been accepted, not only is the making of the contract just at that moment completed by the delivery to the agent of the buyer, the carrier, but by the same act the interstate journey is begun, and the transaction falls immediately under the protection of the interstate commerce clause.

Tredway v. Riley, 32 Neb., 495, 49 N. W., 268, 29 Am. St. Rep., 447, is not in point. In that case it ap-peard the Franz Brewing Company, doing business in Iowa, sold to one Riley, who was a retail liquor dealer in the town of Jackson, State of Nebraska, where it was lawful to sell, a lot of beer at the price of $826.15, and afterwards transferred the account to one Tredway, who instituted suit against Riley for the amount of the account, in the State of Nebraska. The plaintiff admitted in his pleadings that “said purchase was made in the State of Iowa.” The plaintiff further stated his case: •“That the sale of beer made to defendant was made for the purpose and with the intention and understanding that the same was to be shipped to said defendant at his place of business in Jackson, as aforesaid, and there to be retailed by defendant in said saloon,' and under and by authority of his license to vend and retail the same in said town of Jackson and State of Nebraska.” There was a statute in Iowa that “ no person shall manufacture or sell . . . directly or indirectly, any intoxicating liquors, except as hereinafter provided” — the exceptions referring to liquors sold for medical, culinary, or sacramental purposes. The defense made was that the sale did not fall within any of the exceptions, hence Was in violation of the- statute of Iowa, and that the courts of Nebraska would not enforce a contract void by the law of the State where it was made. Upon the case so made, the court said:

“The Iowá statute does not undertake to prevent the transportation of intoxicating liquors from that to any other State, nor to prohibit their sale out of the State. The sale of liquors was not forbidden by reason of their transportation or intended transportation, but the same restriction is placed by the legislature upon the sale of all liquors within the State. No regulation of commerce between the States is «attempted. Had such been the case the State would have been powerless to have forbidden their sale while in the original packages. The fact that it was the intention of the defendant to ship the liquors to this State is quite immaterial. Such intention ancl purpose could not alone Juwe the effect to make the liquors interstate commerce. They did not become so until received by the carrier for shipment. Until then they were under State jurisdiction and control. The supreme court of the United States, in the case of The Daniel Ball, 10 Wall., 565 [19 L. Ed., 999], properly said: Whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced.’ ”

The words which we have italicized indicate the vital difference between the Nebraska case and the case imw before ns. In the former case it appeared that there was a complete contract made between the seller and the buyer before there was any delivery to the carrier, and it does not appear in the facts of that case who made the delivery to the carrier, or when it was made. The plaintiff, suing on the contract, predicated no rights upon such delivery, but simply upon the. fact that the goods had been bought for the purpose of transportation to a foreign State, the State of Nebraska. In the instant case, however, the contract became complete only upon delivery of the goods to the carrier for shipment to the foreign State; that is, the act completing the contract was an act of interstate commerce, and placed the goods under the protection of the federal constitution. The Nebraska case concedes the principle on which the present case is rested.

Ames v. Kirby, 71 N. J. Law, 442, 59 Atl., 558, is not in point. In that case the party was held under arrest for keeping a gaming house. It is true the form of gambling was the transmission of bets by telegraph to a foreign State; but as the court said, the injury to the morals of the community was the same as if the gambling had been done by any other means, consisting, as it did, in the congregating of persons at a place for the purpose of gaming. No question arose, or was considered, upon the delivery or transmission of any special telegram.

We are referred to Geer v. Connecticut, 161 U. S., 519, 16 Sup. Ct., 600, 40 L. Ed., 793, and Silz v. Hesterberg, 211 U. S., 31, 29 Sup. Ct., 10, 53 L. Ed., 75, as throwing light upon the present controversy. These are cases concerning the sale of game, and rest on quite a different principle, which is to the effect that game belongs to the State, and cannot be made a subject of commerce except with its consent.

It is again insisted, as on the former hearing, that the indictment should be sustained under the police power. This court has always upheld the police power of the State with a strong hand; but we cannot accomplish the impossible task of making that power operative in the face of the constitution and laws of the United States. The rule is indubitable, and the fact insurmountable, that the States, when providing by legislation for the protection of the public health, the public morals, or the public safety, are subject to the paramount authority of the .constitution of the United States, and cannot violate rights secured or guaranteed by that instrument, or interfere with the execution of the powers confided to the general government. Henderson v. Mayor of New York, 92 U. S., 259, 23 L. Ed., 543; Hannibal & St. J. R. R. Co. v. Husen, 95 U. S., 465, 24 L. Ed., 527; New Orleans Gaslight Co. v. Lousiana Light Co., 115 U. S., 650, 6 Sup. Ct., 252, 29 L. Ed., 516; Walling v. Michigan, 116 U. S., 446, 6 Sup. Ct., 454, 29 L. Ed., 691; Smith v. Alabama, 124 U. S., 465, 8 Sup. Ct., 564, 31 L. Ed., 508.

It is urged that frauds will be perpetrated by pretended shipments, from points near the State line, to adjoining foreign States, for immediate reshipment into Tennessee, thereby enabling Tennessee dealers to sell to Tennessee consumers, thus largely nullifying our prohibition statutes. Certainly a fraud on the constitution cannot claim protection under it; nor can the fact that frauds may be perpetrated under the law justify us in refusing to declare the law as we understand it. Moreover, the legislature has the power to prevent, by statute, the storing or keeping of intoxicating liquors in the State for purposes of illegal sale, and the illegal business anticipated may thereby be wholly broken up.

In conclusion, while this court holds in highest esteem the ability, integrity, and faithfulness of our distinguished attorney-general, and believes that no officer in any department of the State government has ever served the State with more zeal or efficiency, and while we appreciate the earnestness and fidelity with which he has presented the State’s contentions in the present case, we cannot yield to those contentions, and after full consideration of every point urged in the petition we remain unshaken in our conviction of the soundness of the views expressed in our former opinion.