Abram Rosenberger v. Pacific Express Company

• Decision Date: 24 April 1916
• Docket Number: No. 249,249
• Citation: 36 S.Ct. 510,60 L.Ed. 880,241 U.S. 48
• Parties: ABRAM ROSENBERGER, Plff. in Err., v. PACIFIC EXPRESS COMPANY
• Court: U.S. Supreme Court

241 U.S. 48

36 S.Ct. 510

60 L.Ed. 880

ABRAM ROSENBERGER, Plff. in Err.,

v PACIFIC EXPRESS COMPANY.

No. 249.

Argued March 8, 1916.

Decided April 24, 1916.

Messrs. J. J. Vineyard, A. F. Smith, and Frank F. Rozzelle for plaintiff in error.

Messrs. I. N. Watson and J. L. Minnis for defendant in error.

Mr. Chief Justice White delivered the opinion of the court:

On the taking effect in Texas on the 12th day of February, 1907, of a law imposing a state license tax of $5,000 annually on each place of business or agency of every express company where intoxicating liquors were delivered and the price collected on C. O. D. shipments, and by which law one half of the amount of the state license was in addition authorized to be imposed by every county or municipality, the Express Company, the defendant in error, discontinued at all its agencies in Texas all such business. As a result the company sent back to Kansas City, Missouri, the packages of intoxicating liquor which it had received under C. O. D. shipments made to various places in Texas from Kansas City by Rosenberger, the plaintiff in error, and tendered them to him, conditioned on his payment of the return carriage charges. Rosenberger refused to accept the offer, and brought this suit to recover the value of the merchandise, on the ground that the failure to carry out the shipments was a conversion. The trial court, holding the Texas act was repugnant to the commerce clause of the Constitution of the United States, and afforded no justification to the Express Company for refusing to carry out the shipments, awarded the relief sought. And the object of this writ of error is to obtain a reversal of a final judgment of the court below, reversing the trial court, and rejecting the claim on the ground that the Texas license law was not repugnant to the commerce clause, and afforded ample authority to the Express Company for refusing to complete the interstate shipments in question. 258 Mo. 97, 167 S. W. 429.

Passing minor contentions whose want of merit will be hereafter demonstrated, it is clear that the issue is this: Was the state license law, if applied to C. O. D. interstate commerce shipments, repugnant to the commerce clause of the Constitution? It is certain that this question, in view of the date of the law and of the shipments involved, must be determined in the light of the operation of the commerce clause as affected by the power conferred upon the states by what is usually known as the Wilson law (act of August 8, 1890, chap. 728, 26 Stat. at L. 313, Comp. Stat. 1913, § 8738), and wholly unaffected by § 239 of the Penal Code enacted by Congress March 4, 1909 [35 Stat. at L. 1136, chap. 321, Comp. Stat. 1913, § 10,409] prohibiting the shipment of intoxicating liquors under C. O. D. contracts, and also without reference to the act of Congress known as the Webb-Kenyon law of March 1, 1913 (chap. 90, 37 Stat. at L. 699, Comp. Stat. 1913, § 8739).

Thus limited, as it is not controverted and indeed is indisputable that the provisions of the statute placed a direct burden on the shipments with which it dealt, and in fact were prohibitive of such shipments, it follows that error was committed in holding that the statute was not repugnant to the Constitution of the United States in so far as it applied to interstate C. O. D. shipments, for the following reasons: (a) Because it is settled from the beginning, and too elementary to require anything but statement, that, speaking generally, the states are without power to directly burden interstate commerce, and that commodities moving in such commerce only become subject to the control of the states or to the power on their part to directly burden after the termination of the interstate movement; that is, after the arrival and delivery of the commodities and their sale in the original packages; and that this rule is as applicable to the movement of intoxicating liquors as to any other commodities. (b) Because the Wilson act only modifies these controlling rules by causing interstate commerce shipments of intoxicating liquors to come under state control at an earlier date than they otherwise would; that is, after delivery, but before sale in the original packages. (c) Because the power in interstate commerce shipments to make C. O. D. agreements, that is, agreements on delivery of the commodity shipped to collect and remit the price, is incidental to the right to make such shipments, and the commodities when so shipped do not come under the authority of the state to which the commodities are shipped under such agreements until arrival and delivery, and therefore any attempt on the part of the state to directly burden or prohibit such contracts, or prevent the fulfilment of the same, necessarily comes within the general rule and is repugnant to the Constitution of the United States.

These propositions in substance have been by necessary implication or by direct decision so authoritatively and repeatedly determined, as shown by the cases cited in the margin,¹ that there is no necessity for going further. But in view of the fact that the court below held the statute to be not repugnant to the commerce clause, not because it overlooked the rulings of this court referred to, but because it considered them distinguishable or inapposite to this case for reasons deemed by it to be conclusive, there being some difference of opinion on the subject in the court below, we briefly refer to those reasons.

It was said that the shipment of commodities contains two elements: one, the obligation arising from the duty of the carrier to receive and carry without express contract; and the other, such obligation as arises from contracts made concerning the shipment, not embraced in the duty which rested by law upon the carrier in the absence of contract, the latter being illustrated by C. O. D. contracts. These two classes of obligations, it was pointed out, arising from different sources, were controlled by a consideration of the source whence they sprang; the one, the duty independent of contract, being commerce, and the other, the duty depending upon express contract, in a sense...