James Clark Distilling Co. of Cumberland, Md., v. Western Maryland Ry. Co.

Decision Date18 December 1914
Citation219 F. 333
PartiesJAMES CLARK DISTILLING CO. OF CUMBERLAND, MD., v. WESTERN MARYLAND RY. CO.
CourtU.S. Court of Appeals — Fourth Circuit

On Reargument, January 23, 1915.

J Philip Roman and Walter C. Capper, both of Cumberland, Md and Lawrence Maxwell, of Cincinnati, Ohio, for plaintiffs.

Benjamin A. Richmond, of Cumberland, Md., for defendant.

John Philip Hill, of Baltimore, Md., for American Express Co.

Fred O Blue, Commissioner of Prohibition, of Charleston, W. Va., for the state of West Virginia.

ROSE District Judge.

Both the plaintiff and the defendant are Maryland corporations. The interposition of this court is invoked for the protection of rights said to be given by the Constitution and laws of the United States. The defendant operates a railroad between Cumberland, Md., and various stations in the counties of Mineral, Grant and Tucker, W. Va., among them being the town of Parsons. On July 1, 1914, there went into effect an act of the Legislature of the latter state commonly known as the 'Yost Law.' It prohibits, except for medicinal, pharmaceutical, scientific, mechanical, or sacramental purposes, the manufacture, sale, or offer for sale of intoxicants and the soliciting or receiving of orders for them. It contains many provisions intended to make evasion difficult and dangerous. Penalties are imposed on those who by themselves or in association with others maintain any clubhouse or other place in which liquor is received or kept for the purpose of use, gift, barter, or sale as a beverage, or for distribution or division among the members of any club or association. Section 8 provides in part that:

'If any person shall advertise or give notice by signs, bill board, newspapers, periodicals or otherwise * * * of the sale or keeping for sale of liquors, or shall circulate or distribute any price-lists, circulars or order blanks advertising liquors, or publish any newspaper, magazine, periodical or other written or printed papers, in which such advertisements or notices are given, or shall permit any such notices, or any advertisement of liquors (including bill boards) to be posted upon his premises, or premises under his control, or shall permit the same to so remain upon such premises, shall be guilty of a misdemeanor.'

Another section requires common carriers to keep books in which shall be entered the name of every person to whom liquors are shipped and the amount and kind thereof, together with the date of delivery and by and to whom delivered. Every consignee must in person sign his name to such record.

Within a few weeks after the act went into effect the state thought it had reason to believe that systematic attempts to evade its provisions were being made by various residents of the counties named. It accordingly, as authorized by law, sought the aid of its circuit court having jurisdiction in them. It filed a bill against the company, which is the defendant in this cause. It alleged various facts which strongly tended to show that the defendant was delivering great quantities of liquor to many different persons in the town of Thomas and its neighborhood, and that a number of these shipments were of such quantities as to make it highly improbable that they could have been intended solely for the personal use of the consignees. It charged that much of this liquor had been shipped to boarding bosses and other persons, to be, in violation of law, by them distributed to their boarders or associates. It said that the defendant was accepting shipments and making deliveries of liquors without exercising due care to ascertain that they were not intended to be used in violation of its laws. In accordance with the prayer of this bill an ex parte injunction was issued, which, among other things, enjoined the defendant from accepting for transportation or delivery to any one in the three counties in question any liquors, unless it had first ascertained--

'by acting in good faith, with due diligence and caution, that such liquors were ordered by the consignees for their lawful personal use without solicitation on the part of the consignors, and that such liquors were offered by the consignors for acceptance and delivery thereof by the said defendant to the consignees for their lawful personal use without intention by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of the said state.'

It was further enjoined from delivering to any person in the counties named any liquors procured by the consignee, by him and those associated with him--

'to be received or kept for the purpose of use or gift as a beverage or for distribution or division among himself and those associating with him, at any place which is kept or maintained by himself or by associating with others, or which he by himself or by association with others in any manner aids, assists or abets in keeping or maintaining.'

The decree, moreover, prohibited delivery to any person--

'unless the consignee signs the defendant's liquor record in his own proper person and not in the name of some fictitious person, or otherwise, and then only when the consignee has ordered the same for his personal lawful use with no intention that the liquor so delivered is to be received, possessed, sold or in any manner used in said state of West Virginia in violation of any law thereof.'

So soon as this injunction was served upon the defendant, it determined to refuse, and thereafter did refuse, to receive any shipments of liquor for transportation to any station in those counties. It says that if it attempted, before accepting such shipments or before making such deliveries, to obtain the information required by the order of the West Virginia court, it would be compelled to employ an army of detectives and investigators, which would cost it far more than the gross freight it would receive for the transportation of the merchandise in question.

The plaintiff is a liquor dealer in Cumberland. It has a large and profitable trade in the portion of West Virginia included within those counties. It is also one of the concerns which the state of West Virginia in its bill of complaint in its own court specially mentioned as shipping liquors in large quantities to the town of Thomas and its neighborhood. Both before and after the going into effect of the Yost Act it has through the mails systematically distributed price lists and solicited orders from residents of that part of the state. With its price lists and soliciting circulars it sent out order blanks to be filled up and signed by prospective purchasers. In these blanks there is a clause stating that the liquor is intended for the personal use of the individual giving the order.

In August, 1914, one Floyd Rosier, a resident of the town of Parsons, by one of these order blanks directed the shipment to him by the plaintiff of four quarts of alcohol and sent a post office money order for $4 in payment therefor. The plaintiff packed the goods for shipment and tendered them to the defendant for transportation. In accordance with the determination at which, as before stated, it had arrived, the defendant refused to receive or transport the package and announced that it would refuse to accept any intoxicants for delivery in the territory in which the injunction was operative. The plaintiff thereupon instituted these proceedings. It seeks a mandatory injunction to compel the defendant to transport all liquors ordered, without plaintiff's solicitation, by Rosier and other customers for their own personal use. At its request, and with...

To continue reading

Request your trial
3 cases
  • The State ex rel. Pabst Brewing Co. v. Ellison
    • United States
    • Missouri Supreme Court
    • 31 Diciembre 1921
    ... ... PABST BREWING COMPANY v. JAMES ELLISON et al., Judges of Kansas City Court of ... v. Railroad Co., 210 F. 378; ... Distilling Co. v. Railroad Co., 219 F. 333; ... Brewing Co ... Hutchinson On Carriers (3 Ed.), sec. 796; Clark v ... Railroad Company, 179 Mo. 94; ... ...
  • Wells Fargo & Co. Express v. State
    • United States
    • Arkansas Supreme Court
    • 2 Julio 1917
    ... ... medicinal purposes, from James R. Hogg Dist. Co., at Poplar ... Bluff, Mo ... case of Jas. Clark Distilling Co. v. Western ... Maryland Railroad ... ...
  • James Clark Distilling Co. of Cumberland, MD, v. American Express Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 18 Diciembre 1914
    ...219 F. 339 JAMES CLARK DISTILLING CO. OF CUMBERLAND, MD., v. AMERICAN EXPRESS CO. United States District Court, D. Maryland.December 18, 1914 ... On ... Reargument, January 23, 1915 ... ROSE, ... District Judge ... For the ... reasons ated in the opinion filed in the case of James ... Clark Distilling Company of Cumberland, Md., a Corporation, ... v. Western Maryland Railway Company, a Corporation, 219 ... F. 333, the plaintiff may present draft of decree for an ... injunction to the effect therein ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT