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CHAPTER TWO.

COMMENT AND AUTHORITIES.

DECISIONS SINCE JULY, 1904. The authorities cited in this chapter include those reported to and including 201 U. S. Reports, and 143 Federal Reporter.

I. Constitutional Limitations - Sumptuary Laws —

Police Power. II. Constitutional Limitations - Immunity. III. Commerce Act — Elkins Act — Pooling Rebates

Discrimination. IV. Commerce Act — Carrier Cannot be Dealer. V. Imprisonment — Crimes and Conspiracies. VI. Commerce Act - Mandamus. VII. Commerce Act Jurisdiction Evidence Rem

edies — Procedure. VIII. Criminal Trusts Under Sherman Act. IX. State Anti-Trust Laws Enumerated.

X. Safety Appliance Law. XI. Telegraph Companies.

I. CONSTITUTIONAL LIMITATIONS SUMPTUARY LAWS

POLICE POWER.

§ 1. Interstate Commerce Original Package, What Constitutes.— The term “ original package” is not defined by statute. Its size and shape cannot always be determined by judicial authority, so as to bring it within the protection of the commerce clause of the Constitution, exempting interstate commerce from State legislation. The term “original package," however, does not include packages which cannot be commercially transported from one State to another. Where a person transporting goods selects an unusual method for the express purpose of evading or defying the police laws of another State, the commerce clause of the Constitution cannot be invoked to protect the fraudulent transaction. (Cook v. Marshall County, 196 U. S. 261.)

In the case cited there was an attempt by the shipper to introduce cigarettes in packages into the State of Iowa, to evade the provision of the Iowa statute (Code, $ 5007), imposing a tax of $300 upon every person, and also upon real property of the owner thereof, upon which property cigarettes are sold or kept for sale. Cigarettes were shipped by the American Tobacco Company from St. Louis into the State of Iowa to the plaintiffs' place of business in small pasteboard boxes, containing ten cigarettes each, each package being sealed and stamped with the revenue stamp. The packages were shipped loose, were not boxed, baled, wrapped, or covered, nor were they in any way attached together. The court inferred that they were shuffled into and out of the cars and delivered to plaintiffs in that condition. The court held, following the decision in Austin v. Tennessee, 179 U. S. 343, that the cigarettes were shipped in a manner clearly intended to evade the laws of the State of Iowa, and that the condition in which they were sent did not constitute original packages within the meaning of the Federal de cisions, and were not protected under the commerce clause of the Constitution, from regulation by the police power of the State. (Cook v. Marshall County, 196 U. S. 261.)

§ 2. Interstate Commerce - When State Liquor Laws not Operative as to.- Under the Wilson Act (passed August 8, 1890), all fermented, distilled, or other intoxicating liquors transported into any State or remaining therein for use, consumption, sale, or storage are, upon arrival in such State, subject to the operation and effect of the laws of the State to which they are shipped and subject to the police powers of such State, to the same extent as domestic property therein, whether such liquors are transported in original packages or otherwise. A State, however, has no power to destroy contracts concerning interstate commerce, valid in the State where the contract was made, and the citizens of one State may freely contract to receive merchandise sent

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from another State, under the constitutional provision which guarantees freedom of commerce between the States. The parties to such a contract have a right to fix the time when, and condition on which, completed title shall pass. Packages of intoxicating liquor were received by the American Express Company at Rock Island, Ill., to be carried to Tama, Iowa, there to be delivered to four different consignees, one package being consigned to each. The shipments were made C. 0. D., $3 to be collected on each package, exclusive of thirty-five cents for carriage on each. Under the prohibition statutes of Iowa, the goods were seized in the hands of the express agent before delivery. The court held, reversing the Supreme Court of Iowa, that the seizure of the liquor in the hands of the express company was an unwarranted interference with interstate commerce, and that, until the goods were delivered to the respective consignees, they did not become subject to the police power of the State of Iowa. The commerce clause of the Constitution protects interstate transportation and exempts from State interference a shipment of liquors, imported into a State, until the contract of shipment, or the act of interstate transportation is fully performed and consummated by delivery to the consignee. Such delivery marks the first point of time at which the goods become subjected to State control as being commingled in the general mass of property within the State, and then only is there a subject upon which the police power of the State can operate. (American Express Company v. Iowa, 196 U. S. 133.)

The court observed that the question as to whether a shipment of property C. 0. D. is complete by delivery to the carrier for transportation, or whether the sale is not consummated until the payment of the price and delivery to the consignee, was not material. The contract to sell and ship was completed in Illinois. The right of the parties to make a contract in Illinois for the sale and purchase of merchandise, and to fix by agreement the time when the title should pass, was undoubted; and the shipment from the State of Illinois into the State of Iowa of the merchandise constituted interstate commerce. The law of Iowa, therefore, could not operate in the State of Illinois, so as to invalidate a lawful contract of interstate commerce made there. A citizen of one State has a right to have merchandise consigned from another State and delivered to him as consignee. Such transactions are protected by the commerce clause of the Constitution. (American Express Company v. Iowa, 196 U. S. 133.)

The court, in its opinion, reviewed the following authorities: Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465; Leisy v. Hardin, 135 U. S. 100; Rhodes v. Iowa, 170 U. S. 112; Vance v. Vandercook Co., No. 1, 170 U. S. 438; Norfolk & Western R. R. Co. v. Simms, 191 U.S. 441; Caldwell v. North Carolina, 187 U. S. 632; American Steel & Wire Co. v. Speed, 192 U. S. 500.

§ 3. Interstate Commerce - When Sale of Liquors is not.-A State may impose a license fee as a condition to the right to sell intoxicating liquors over the bar on board a steamboat, used as a ferry-boat, while the boat is within the boundaries of the State, notwithstanding that such boat, plying the waters in the Mississippi river, may be engaged in interstate commerce. Such a license fee may be imposed by the State in the exercise of its police power. It cannot be said that the license is a tax upon the boat, the crew,

the passengers, or the liquor sold, nor a fee for navigating the river, because the liquors are not consigned nor sold in original packages, transported from one State to be delivered to a consignee in another State, and that such a license was not a tax upon interstate commerce. (Foppiano v. Speed, 199 U. S. 501.)

The court held that since the passage of the Wilson Act, August 8, 1890, there was a distinction between the right to sell intoxicating liquors on vessels engaged in interstate commerce and other business conducted on such vessel. Under the Wilson Act the law of a particular State operates upon intoxicating liquors as to the regulation of their sale and disposition, after they had been delivered to the consignee. After such delivery, the State has power to prevent the sale of the liquors, even in original packages, unless consigned to

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If the liquor kept for sale on the bar of the ferıy-boat kar been consigned to the plaintiff in error from Arkansas addressed to him in Memphis, Tenn., though the plaintiff would have the right to the delivery of the liquors to him at the wharf in Memphis, yet, under the act of Congress, the State of Tennessee could have prohibited absolutely the sale thereof, even in original packages. If, therefore, the State of Tennessee could totally prohibit such sale, it could permit such sale conditionally. The liquors were owned by the plaintiff in error, while on the boat, and carried along from port to port to be used on the boat as the demand at the bar made necessary. What the plaintiff in error did was to sell intoxicating liquors on this ferry-boat, anchored temporarily on the wharf at Memphis, within the boundaries of the State of Tennessee, to persons on the boat, and by reason of such sales the laws of Tennessee required the plaintiff to take out a license and pay the tax therefor. The case is as if plaintiff had received a consignment of liquor from outside the State, and old portion of it within the State to different persons on the boat. The State of Tennessee did not tax the liquor, but compelled the plaintiff to get a license to sell it within the State. The only person liable for the payment of this tax was the seller of the liquor. It was, therefore, not a tax upon

the officers or crew of the boat, nor in payment of any fees for navigating the river. The court further said that, in view of all the facts, there was no merit in the contention that the Mississippi river was a public highway and that the boat, being personal property, owned by a corporation in Arkansas, was Arkansas territory, and exempt from the police regulations of Tennessee while within the boundaries of the latter State. (Foppiano v. Speed, 199 U. S. 501.)

Interstate Commerce Sale of Liquors Wilson Act Construed.- A State statute which operates upon beer and malt liquors shipped from other States after their arrival and while held for sale or consumption within the State is not an interference with interstate commerce, and is an inspection law and not a revenue law in view of

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