| Me. | Nov 14, 1911
There being no claim of an actual delivery, the sole question for determination is whether the liquors were constructively delivered before seizure under process.
The act of Congress of August 8, 1890, 26 Stats. 313, known as the Wilson Act, provides that all intoxicating liquors "transported into any state or territory, or remaining therein for use,
1. The elementary and long settled doctrine is reiterated that, prior to the Wilson Act, in case of interstate shipments, "delivery and sale in the original packages was necessary to terminate interstate commerce, so far as the police regulations of the states were concerned..”
2. That the Wilson Act manifested no attempt on the part of Congress to delegate to the states the right to forbid the transportation of merchandise from one state to another, "since it merely provided, in the case of intoxicating liquors, that such merchandise, when transported from one state to another, should lose its character as interstate commerce upon completion of delivery under the contract of interstate shipment, and before sale in the original package.”
3. That the State statute must permit the delivery of the liquors to the party to whom they were consigned within the State, but that, after such delivery, the State has power to prevent the sale of the liquors, even in the original package.
4. That the question whether the liability of the carrier, as such, has ceased, under the State laws, and has become that of a warehouseman, is immaterial. State v. Intoxicating Liquors, 102 Maine, 385, 395.
In the case under consideration, as already seen, there is no pretense of an actual delivery but it is urged by the State that there was a constructive delivery and that such is sufficient to meet the requirement of the "Wilson Act.” In Heyman v. Southern Railway Co., ubi supra, there were no facts justifying the passing upon
This language of the Supreme Court of the United States has already been considered by this court in State v. Intoxicating Liquors, 102 Maine, 385, 396, in which it is held that the point, if tenable, is unimportant from lack of facts to render it applicable to the cases under consideration; and in State v. Intoxicating Liquors, 104 Maine, 463, and again in State v. Intoxicating Liquors, 106 Maine, 138.
In the case in 104 Maine, 463, it is said "In this paragraph the court seems to have undertaken to state but not to decide the three essential elements of constructive delivery to be notice to the consignee of the arrival of the goods; a reasonable time on his part after notice to receive them, and a mutual design or arrangement with the carrier to hold them for the consignee. ” And referring to the words "designedly left in the hands of the carrier for an unreasonable time” the court says "This phrase was undoubtedly intended to allude to a passive or silent understanding between the shippers of liquors, the carriers and consignees with reference to those transactions which operate to enable an evasion of the law and assist consignees in obtaining a safe delivery of their contraband goods.” .... "The rule is well established that a constructive delivery can be effected only by an agreement between the carrier or middleman and the buyer or person claiming under him whereby the former agrees to hold the goods for the latter for some purpose other than that of carriage and delivery at their original destination. In the absence of an agreement with the buyer to the contrary, the carrier will be presumed to hold the goods in his
In 106 Maine, 138, this court says "In Heyman v. Southern Railway Company, 203 U.S. 270" court="SCOTUS" date_filed="1906-12-03" href="https://app.midpage.ai/document/heyman-v-southern-railway-co-96524?utm_source=webapp" opinion_id="96524">203 U. S. 270, 276, the court was careful to say that it did not decide that the federal protection would not be lost where the consignee, after notice, designedly left the liquors in the hands of the carrier for an unreasonable time. The locality of the liquors is not made the test. All that the federal courts seem to require is that the liquors shall once have been turned over to and accepted by the consignee. This may occur without any removal of the liquors themselves from the freight sheds of the carrier.” This case and that in the 104 Maine, 463, were contracts for the carriage of goods as freight and not by express. In the latter case, it was held there was no constructive delivery, in the former that there was, but in that case not only had all the goods been receipted for but part of them had been delivered from the freight shed of the carrier to the agent of the consignee.
Was there constructive delivery of the liquors in the case at bar? As has been noted the contract between the shipper and carrier provided for carriage by express. Such contract includes the delivery of the goods to the consignee personally or at his residence or place
We do not think that the facts present a case within the exception from the rule as to delivery suggested in Heyman v. Southern Railway Company, ubi supra. There is no evidence that the liquors were designedly left in the hands of the carrier. At most there is but a suspicion or surmise arising from the character of the goods but there is no evidence contradicting the statement of plaintiff that he was not informed as to their ownership and that he asked opportunity to learn. Neither do we think they were held by the carrier an unreasonable length of time. If, instead of liquors, the goods had been any other commodity would seven hours have been an. unreasonable delay? And to hold that a delay reasonable as to other commodities is unreasonable with respect to intoxicating liquors would be to refuse to the latter before delivery the same protection which the commerce clause of the Constitution affords to other goods. See Heyman v. Southern Railway Co., 203 U.S. 270" court="SCOTUS" date_filed="1906-12-03" href="https://app.midpage.ai/document/heyman-v-southern-railway-co-96524?utm_source=webapp" opinion_id="96524">203 U. S. 270, 276, 277; Adams Express Co. v. Kentucky, 206 U.S. 129" court="SCOTUS" date_filed="1907-05-13" href="https://app.midpage.ai/document/adams-express-co-v-kentucky-96670?utm_source=webapp" opinion_id="96670">206 U. S. 129, 135, 136. Until delivery commerce in intoxicating liquors is left by the Wilson Act as free and untrammelled, and subject to the same regulations, as other commodities but to hold unreasonable delay in case of the former to be different from that of the latter would be discrimination and would permit the police laws of the State to affect the regulation of commerce. Adams Express Co. v. Kentucky, 214 U.S. 218" court="SCOTUS" date_filed="1909-05-24" href="https://app.midpage.ai/document/adams-express-co-v-kentucky-97051?utm_source=webapp" opinion_id="97051">214 U. S. 218, 222; Ex parte Eaglesfield, 180 F. 558" court="E.D. Wis." date_filed="1910-06-03" href="https://app.midpage.ai/document/ex-parte-eaglesfield-8775934?utm_source=webapp" opinion_id="8775934">180 Fed. 558, 562. The regulation of commerce adopted by the Wilson Act is one common rule, whose
Applying the test of our own decisions, we do not find constructive delivery proven by the facts presented in the reported case. There is no satisfactory evidence of a change of the contract of carriage by agreement of the parties nor was such a change affected by operation of law; State v. Intoxicating Liquors, 104 Maine, 463, 468; nor is there evidence that either contemporaneously with or subsequent to the giving of the receipt there was delivery of a part of the goods, as in State v. Intoxicating Liquors, 106 Maine, 138, 140.
A nol. pros, may be entered.