Ex parte Jervey

Decision Date12 March 1895
Citation66 F. 957
PartiesEx parte JERVEY et al.
CourtU.S. Court of Appeals — Fourth Circuit

Bryan &amp Bryan, for petitioners.

C. P Townsend, Asst. Atty. Gen., and W. Gibbes Whaley, for respondent.

SIMONTON Circuit Judge.

Joseph E. V. Jervey, Sr., is the master, and the other petitioners constituted the crew of the schooner Carolina, a vessel of the United States, duly licensed for conducting a coasting trade between ports and cities in the states of North Carolina, Georgia, and South Carolina. In February last she was lying in the port of Savannah, and there took in a cargo consisting of 6 barrels marked 'whisky' and 22 barrels marked 'vinegar,' shipped on her to be transported by sea to Charleston, S.C., and for which she was to receive freight $75. As far as appears, none of the petitioners had any ownership in any of the barrels or their contents, or any other interest in them except the freight for their carriage between these two ports. Immediately on the arrival of the Carolina alongside the wharf in Charleston, some time before daylight on 26th February, and before cargo was broken, these three men were arrested by the city police, and held in custody. On the same day a warrant was issued by George W. Rouse, Esq., a trial justice of the state, in these words:

'The State of South Carolina, Charleston County.

'Affidavit for Arrest Warrant.

'Personally appeared before me E. C. Beach, who, being duly sworn, say that in the state and county above named, at Charleston, S.C., about the 26th day of February, 1895, J. E. V. Jervey, Sr., J. E. V. Jervey, Jr., and Henry Gardner did unlawfully bring alcoholic liquors into this state, in violation of section 33 of the dispensary act, and that Sergt. Quin and Private McCaffrey are material witnesses for the state.

E. C. Beach.

'Sworn to before me, this 26th day of February, 1895.

'George W. Rouse, Trial Justice.

'South Carolina, Charleston County.

'Arrest Warrant.

'By George W. Rouse, Trial Justice, in the Court and State Above Named, to Any Sheriff or Constable E. C. Beach: Whereas, complaint has been made unto me by E. C. Beach that J. E. V. jervey, Sr., and J. E. V. Jervey, Jr., and Henry Gardner did unlawfully bring into the state, in violation of section 33 of the dispensary act, alcoholic liquor, these are therefore to command you to apprehend the said J. E. V. Jervey, Sr., J. E. V. Jervey, Jr., and Henry Gardner, and to bring them before me to be dealt with according to law.

'Given under my hand and seal, at Charleston, this 26th day of February, 1895.

George W. Rouse, Trial Justice.'

By virtue of this warrant, they were arrested, and put in custody. They gave bail, but were surrendered by their bail to the sheriff in whose custody they were when the petition was filed. The petitioners are in custody because they master and crew of the schooner Carolina, transported in the schooner, for freight money, these barrels of whisky, from the port of Savannah, in the state of Georgia, to the port of Charleston, in this state. It is charged that in so doing they violated section 33 of the dispensary act of this state, in these words:

'No person, except as provided in this act, shall bring into this state, or transport from place to place within this state, by wagon, cart, or other vehicle, or by any other means or mode of carriage, any liquor or liquids containing alcohol, under a penalty of one hundred dollars or imprisonment for thirty days for each offence, upon conviction thereof, as for a misdemeanor.'

The petitioners allege that this section of the dispensary law, so far as it is sought to apply it to them, is an attempt to regulate commerce between the states, and is in conflict with the constitution and laws of the United States, and therefore null and void.

The issue thus presented is one cognizable in this court. 'Under the provisions of sections 751 to 753 of the Revised Statutes of the United States, the courts of the United States and their judges have jurisdiction upon a writ of habeas corpus to inquire into the cause of the imprisonment of the petitioner; and if, upon such inquiry, he is found to be in custody for an act done or omitted in pursuance of a law of the United States, he is entitled to be discharged, no matter from whom or under what authority the process under which he is held may have issued, the constitution and laws of the United States made in pursuance thereof being the supreme law of the land. ' In re Neagle, 39 F. 833; Ex parte Royall, 117 U.S. 241, 6 Sup.Ct. 734; Ex parte McCready, 1 Hughes, 598, Fed. Cas. No. 8,732; Electoral College of South Carolina, 1 Hughes, 571, 8 Fed.Cas.No. 4,336; Wildenhus' Case, 120 U.S. 1, 7 Sup.Ct. 385. Is the act of the legislature of South Carolina upon which this arrest was based in conflict with the constitution and laws of the United States? The act declares it a misdemeanor, punishable by fine or imprisonment, for any person, except as provided in the act, to bring into this state, by any means or mode of carriage, any liquor or liquids containing alcohol. Is it a regulation of commerce? It relates to liquids or liquor containing alcohol,-- an article of commerce. 'That ardent spirits, distilled liquors, ale and beer, are subjects of exchange, barter and traffic, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of congress and decisions of the court, is not denied. ' Leisy v. Hardin, 135 U.S. 110, 10 Sup.Ct. 681. The dispensary act itself recognizes alcoholic liquors as the subject of interstate commerce, as it provides for their transportation; and, when imported, it recognizes them as subjects of exchange, barter, and traffic, for it provides elaborate machinery for the sale of them to the people of the state. This being so, the act does not forbid absolutely the importation of these liquors or liquids, but forbids their importation, 'except as provided in this act. ' The provision, therefore, is clearly a regulation of commerce. 'Commerce among the states consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, and the navigation of public waters for that purpose, as well as the purchase, sale, and exchange of commodities. ' Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 5 Sup.Ct. 826. Transportation is essential to commerce, or rather is commerce itself, and every obstacle to it or burden laid on it by legislative authority is regulative. Railroad Co. v. Husen, 95 U.S., at page 470. See, also, Hall v. De Cuir, Id. 485. The power to regulate commerce is vested in congress, is complete in itself, and has no limitations other than those prescribed in the constitution. Gibbons v. Ogden, 9 Wheat 1. This power so vested in congress is the power to prescribe rules by which it should be governed, that is to say, the conditions upon which it shall be conducted,-- to determine when it shall be free, and when subject to duties or other exactions. Gloucester Ferry Co. v. Pennsylvania, supra. This power is exclusive. 'All that portion of commerce with foreign countries or between the states, which consists in the transportation, purchase, sale, and exchange of commodities is national in its character. Here there can, of necessity, be only one system or plan of regulation, and that congress alone can prescribe. Its nonaction with respect to any particular commodity or mode of transportation is a declaration of its purpose that the commerce in that commodity or by that means of transportation shall be free. ' County of Mobile v. Kimball, 102 U.S., at page 697.

The power to regulate commerce is so complete in itself acknowledging no other limitations than those prescribed in the constitution, and so coextensive with the subject on which it acts, that it cannot be stopped at the external boundaries of a state; it enters into the interior. Leisy v. Hardin, 135 U.S., at page 111, 10 Sup.Ct. 681. The feebleness of the Confederacy, formed during the Revolution, over this subject, was one of the prime causes of the convention of 1789; and this provision of the constitution to meet this question, and to confer absolute and exclusive control over commerce in congress, was the result. The nature of this provision and its correction of the evils it was intended to cure require that a similar power should not exist in the states. County of Mobile v. Kimball, 102 U.S. 691. It is true that in certain cases in which the legislation of the state is not directed against commerce, but relates to the rights, duties, and obligations of citizens, and affects the operations of foreign and interstate commerce, or persons...

To continue reading

Request your trial
6 cases
  • State v. U.S. Express Co.
    • United States
    • United States State Supreme Court of Iowa
    • 17 Febrero 1914
    ...Wall. 573 (18 L.Ed. 229); New York v. Weaver, 100 U.S. 539 (25 L.Ed. 705); Farmers' Bank v. Dearing, 91 U.S. 29 (23 L.Ed. 196); Ex parte Jervey (C. C.) 66 F. 957; v. Railroad, 125 U.S. 465 (8 S.Ct. 689, 1062, 31 L.Ed. 700); Schollenberger v. Pennsylvania, 171 U.S. 1 (18 S.Ct. 757, 43 L.Ed. ......
  • Gulf, C. & S.F. Ry. Co. v. State
    • United States
    • Supreme Court of Oklahoma
    • 9 Mayo 1911
    ...P. 1093, 25 L. R. A. (N. S.) 492; St. Louis & S. F. R. Co. v. State, 26 Okl. 300, 109 P. 230; In re Lebolt (C. C.) 77 F. 587; Ex parte Jervey (C. C.) 66 F. 957; re Langford (C. C.) 57 F. 570. In Adams Express Co. v. Kentucky, 214 U.S. 218, 29 S.Ct. 633, 53 L.Ed. 972, a state statute (Ky. St......
  • Ex parte Martin
    • United States
    • U.S. District Court — District of Oregon
    • 20 Junio 1910
    ...... where the propriety of the exercise of the discretion of the. court in entertaining jurisdiction at once, notwithstanding. the causes were then pending in the state courts, was very. plain, namely, In re Ah Jow (C.C.) 29 F. 181, Ex. parte Kieffer (C.C.) 40 F. 399, and Ex parte Jervey (C.C.) 66. F. 957. In each of these cases, and others that might be. cited of the same tenor, the question involved was of prime. importance, and it was patent from first impression that a. great wrong was being perpetrated by an enforcement of the. state law complained against, and it was a ......
  • State v. Seagraves
    • United States
    • Court of Appeal of Missouri (US)
    • 7 Marzo 1905
    ...... their sale on Sunday is a declaration to the effect that such. sales are lawful. Ex parte" Edgerton, 59 F. 115; Ex parte. Jervey, 66 F. 957; Jervey v. Carolina, 66 F. 1013. . .          Thomas. D. Hines for respondent. . . \xC2"......
  • Request a trial to view additional results

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