United States v. United States Express Co.

• Decision Date: 13 July 1910
• Citation: 180 F. 1006
• Parties: UNITED STATES ex rel. FRIEDMAN et al. v. UNITED STATES EXPRESS CO.
• Court: U.S. District Court — Western District of Arkansas

180 F. 1006

UNITED STATES ex rel. FRIEDMAN et al. v. UNITED STATES EXPRESS CO.

United States District Court, W.D. Arkansas, Fort Smith Division.

July 13, 1910

[Copyrighted Material Omitted]

Youmans & Youmans, for complainants.

C. E. &amp H. P. Warner, for defendant.

ROGERS District Judge (after stating the facts as above).

The first question which this demurrer raises is whether the tenth section of the act of March 2, 1889, supra, authorizes this proceeding. That depends upon the further question as to whether the petition brings the case stated within the purview of the provisions of the interstate commerce law. In the third section of an act to regulate commerce, approved February 4, 1887 (Act Feb. 4, 1887, c. 104, 24 Stat. 380 (U.S. Comp. St. 1901, p. 3155)), it is provided;

'Sec 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.'

A critical examination of that section makes it clear that it is unlawful for any common carrier 'to make or give any undue or unreasonable preference or advantage to * * * any particular description of traffic, in any respect whatsoever, or to subject any * * * particular description of traffic to undue or unreasonable prejudice or disadvantage in any respect whatsoever. ' The allegations of the complaint make it clear that the case made is completely covered by that statute; provided intoxicating liquor is an article of commerce and is not prohibited by law from being introduced into that part of the state of Oklahoma known as the Indian Territory. Whether intoxicating liquor is prohibited by law from being introduced into said territory depends upon the question as to whether or not the act of January 30, 1897 (Act Jan. 30, 1897, c. 109, 29 Stat. 506) is still in force as to that territory.

The purpose of this legislation is obvious. Speaking historically the status of the Indian and that of the Indian Territory were in a transition state. Congress was preparing the Indians for individual allotment, for American citizenship and statehood, and at the same time was endeavoring to guard the Indian from the evil consequences of intoxicating liquor and the sinister designs of unscrupulous people who might take advantage of their weakness for strong drink and despoil them of their properties. While this statute was in force, the act of Congress enabling Oklahoma to become a state was approved June 16, 1906 (Act June 16, 1906, c. 3335, 34 Stat. 267 (U.S. Comp. St. Supp. 1909, p. 155)). It is insisted that the second paragraph of section 3 of that act (34 Stat. 269, 270) repeals the intercourse act of January 30, 1897, supra, which forbade the introduction of intoxicating liquors into the Indian Territory. That section of the enabling act is as follows: 'Second. That the manufacture, sale, barter, giving away, or otherwise furnishing, except as hereinafter provided, of intoxicating liquors within those parts of said state now known as the Indian Territory and the Osage Indian reservation and within any other parts of said state which existed as Indian reservations on the first day of January, nineteen hundred and six, is prohibited for a period of twenty-one years from the date of the admission of said state into the Union, and thereafter until the people of said state shall otherwise provide by amendment of said constitution and proper state legislation. Any person individual or corporate, who shall manufacture, sell, barter, give away, or otherwise furnish any intoxicating liquor of any kind, including beer, ale, and wine, contrary to the provisions of this section, or who shall, within the above-described portions of said state, advertise for sale or solicit the purchase of any such liquors or who shall ship or in any way convey such liquors from other parts of said state into the portions hereinbefore described, shall be punished, on conviction thereof, by fine not less than fifty dollars and by imprisonment not less than thirty days for each offense: Provided, that the Legislature may provide by law for one agency under the supervision of said state in each incorporated town of not less than two thousand population in the portions of said state, hereinbefore described; and if there be no incorporated town of two thousand population in any county in said portions of said state, such county shall be entitled to have one such agency, for the sale of such liquors for medicinal purposes; and for the sale, for industrial purposes, of alcohol which shall have been denaturized by some process approved by the United States Commissioner of Internal Revenue; and for the sale of alcohol for scientific purposes to such scientific institutions, universities, and colleges as are authorized to procure the same free of tax under the laws of the United States; and for the sale of such liquors to any apothecary who shall have executed an approved bond, in a sum not less than one thousand dollars, conditioned that none of such liquors shall be used or disposed of for any purpose other than in the compounding of prescriptions or other medicines, the sale of which would not subject him to the payment of the special tax required of liquor dealers by the United States, and the payment of such special tax by any person within the parts of said state hereinabove defined shall constitute prima facie evidence of his intention to violate the provisions of this section. No sale shall be made except upon the sworn statement of the applicant in writing setting forth the purpose for which the liquor is used, and no sale shall be made for medicinal purposes except sales to apothecaries as hereinabove provided unless such statement shall be accompanied by a bona fide prescription signed by a regular practicing physician, which prescription shall not be filled more than once. Each sale shall be duly registered, and the register thereof, together with the affidavits and prescriptions pertaining thereto, shall be open to inspection by any officer or citizen of said state at all times during business hours. Any person who shall knowingly make a false affidavit for the purpose aforesaid shall be deemed guilty of perjury. Any physician who shall prescribe any such liquor, except for treatment of disease which after his own personal diagnosis he shall deem to require such treatment, shall, upon conviction thereof, be punished for each offense by fine of not less than two hundred dollars or by imprisonment for not less than thirty days, or by both such fine and imprisonment; and any person connected with any such agency who shall be convicted of making any sale or other disposition of liquor contrary to these provisions shall be punished by imprisonment for not less than one year and one day. Upon the admission of said state into the Union these provisions shall be immediately enforceable in the courts of said state.'

In considering this question we are compelled to assume that the Congress understood not only the status of the Indian, but also what would be the effect of admitting Oklahoma into the Union as a sovereign state under the Constitution. The very title of the enabling act shows that Congress intended Oklahoma to 'be admitted into the Union on equal footing with the original states'; but, if it had intended otherwise, the result would have been the same. Chief Justice Taney, in the Dred Scott Decision, 19 How. 446, 15 L.Ed. 691, in discussing the duties and powers of the federal government in acquiring additional territory, and the admission of states into the Union, said:

'There is certainly no power given by the Constitution to the federal government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new states. That power is plainly given; and if a new state is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers, and duties of the state, and the citizens of the state and the federal government. But no power is given to acquire a territory to be held and governed permanently in that character.'

In Sands v. Manistee River Improvement Co., 123 U.S. 289, 8 Sup.Ct. 113, 31 L.Ed. 149, Mr. Justice Field, speaking for the full court, in discussing the respective powers of the state of Michigan and the federal government, as affected by the ordinance of 1787, said:

'There was no contract in the fourth article of the ordinance of 1787 respecting the freedom of the navigable waters of the territory northwest of the Ohio river emptying into the St. Lawrence, which bound the people of the territory, or of any portion of it, when subsequently formed into a state and admitted into the Union.

'The ordinance of 1787 was passed a year and some months before the Constitution of the United States went into operation. Its framers, and the Congress of the confederation which passed it, evidently considered that the principles and declaration of rights and privileges expressed in its articles would always be of binding obligation upon the people of the territory. The ordinance in terms ordains and declares that its articles 'shall be considered as articles of compact between the original states and the people and states in the said territory, and forever remain

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