Adams Exp. Co. v. Com.

• Decision Date: 17 June 1913
• Citation: 154 Ky. 462,157 S.W. 908
• Parties: ADAMS EXPRESS CO. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

157 S.W. 908

154 Ky. 462

ADAMS EXPRESS CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 17, 1913

Appeal from Circuit Court, Whitley County.

The Adams Express Company was convicted of bringing intoxicating liquor into local option territory, and it appeals. Reversed with directions.

Lawrence Maxwell and Joseph S. Graydon, both of Cincinnati, Ohio, and Tye & Siler, of Williamsburg, for appellant.

James Garnett, Atty. Gen., and Joseph B. Snyder, Commonwealth's Atty., and J. C. Bird, both of Williamsburg, for the Commonwealth.

CARROLL J.

Several separate indictments were returned in the Whitley circuit court against the Adams Express Company, a common carrier of goods, charging it with the offense of bringing into local option territory, in Whitley county, intoxicating liquor, and delivering the same in such territory to the persons named in the indictments as the consignees; one of these persons being Jim Prewitt. The indictments were found under section 2569a of the Kentucky Statutes, providing in part that: "It shall be unlawful for any person or persons, individual or corporation, public or private carrier to bring into transfer to other person or persons, corporations, carrier or agent, deliver or distribute, in any county, district precinct, town or city, where the sale of intoxicating liquors has been prohibited, or may be prohibited, whether by special act of the General Assembly, or by vote of the people under the local option law, any spirituous, vinous, malt or other intoxicating liquor, regardless of the name by which it may be called; and this act shall apply to all packages of such intoxicating liquors whether broken or unbroken: Provided individuals may bring into such district, upon their person or as their personal baggage, and for their private use, such liquors in quantity not to exceed one gallon: And provided, the provisions of this act shall not apply to licensed physicians or druggists, to whom any public carrier may deliver such goods, in unbroken packages, in quantity not to exceed five gallons at any one time."

An agreed state of facts was made up between the commonwealth and the express company in which it was stipulated, in substance, that the intoxicating liquor that the express company, a common carrier, was indicated for carrying into and delivering in local option territory in this state was carried by it in the usual course of business from a point in the state of Tennessee, at which place it was received by the carrier for shipment to the consignees. It was further stipulated that the liquor had theretofore been purchased by the consignees at the place in Tennessee from which it was shipped, and the purchase price had been paid by the consignees to the seller and consignor of the liquor at this at his place of business in Tennessee before the liquor was delivered to the carrier. It was further stipulated that the liquor was delivered by the carrier in local option territory to the persons named as consignees, who were the same persons who had purchased and paid the seller for the liquor in the state of Tennessee before it was delivered by the seller to the carrier for shipment to the consignees who had so purchased it, and that the shipments took place after the act of Congress, known as the Webb-Kenyon Law, had gone into effect. And it was further stipulated that: "Said liquors were intended by said consignees, respectively, for their personal use, and were so used by them and were not intended by them to be sold contrary to law, and were not so sold by them. That said consignees, being the persons named as witnesses in said indictments, were not at the times referred to in this stipulation either druggists or physicians."

Upon this agreed state of facts, the trial court, after refusing the request of the defendant to direct a verdict in its favor, instructed the jury, in substance, that at the times mentioned in the agreed state of facts Whitley county was what is commonly known as local option territory, and it was unlawful to sell, give, or procure or furnish to another any spirituous, vinous, or malt liquors therein, and if they believed from the evidence that the defendant, Adams Express Company, as a common carrier, brought into Whitley county and there delivered to Jim Prewitt, the person named in the indictment, any spirituous, vinous, or malt liquors, they should find it guilty and fix its punishment at any fine not less than $50 nor more than $100, in their discretion according to the proof.

Under the evidence and instructions the jury found the defendant guilty and fixed its punishment in the case we have before us at the fine of $100. From the judgment entered on the verdict of the jury, this appeal is prosecuted by the Adams Express Company and a reversal of the judgment asked upon the following grounds: (a) That the act of Congress known as the Webb-Kenyon Law as unconstitutional and void; (b) because the indictment is fatally defective in failing to charge that the liquors in question were intended to be possessed, sold, or in some manner used by the consignee in violation of the laws of the state; (c) because section 2569a of the Kentucky Statutes, under which the indictment was found, is unconstitutional when attempted to be applied to interstate shipments of intoxicating liquor; (d) if the Webb-Kenyon Law should be treated as a valid enactment, it is not applicable to the facts of this case, and, this being so, the express company did not commit any offense punishable under the laws of this state.

At the outset it is agreed by counsel for the common wealth that, except for the enactment of the congressional legislation known as the Webb-Kenyon Law, the express company, as a common carrier, could not be punished under section 2569a of our statute for carrying intoxicating liquor from a point in the state of Tennessee into territory in this state in which the sale of such liquor is prohibited by law and delivering it under the circumstances set out in the agreed state of facts, as this statute was expressly declared by the Supreme Court of the United States in Louisville & Nashville Railroad Co. v. Cook Brewing Co., 223 U.S. 70, 32 S.Ct. 189, 56 L.Ed. 355, to be inoperative when attempted to be applied to interstate shipments of intoxicating liquor, although it was and is effective in its application to intrastate shipments of such liquor. In the case mentioned the Cook Brewing Company, an Indiana corporation engaged in business at Evansville, Ind., tendered to the Louisville & Nashville Railroad Co., a common carrier of goods, a quantity of beer consigned to a point in the state of Kentucky in which the local option law was in force. The railroad company, having in mind section 2569a of the Kentucky Statutes, and not wishing to violate it, declined to carry the beer, and thereupon the Cook Brewing Company brought a suit to compel the railroad company to carry it. Holding that the carrier could not decline to receive, carry, or deliver the beer, the Supreme Court, after setting out section 2569a of the statute, said: "The legality of the attitude of the railroad company toward interstate shipments of intoxicating liquors to local option points in Kentucky must turn upon the validity of that legislation as applied to interstate shipments. By a long line of decisions, beginning even prior to Leisy v. Hardin, 135 U.S. 100 34 L.Ed. 128, it has been indisputably determined: (a) That beer and other intoxicating liquors are a recognized and legitimate subject of interstate commerce. (b) That it is not competent for any state to forbid any common carrier to transport such articles from a consignor in one state to a consignee in another. (c) That, until such transportation is concluded by delivery to the consignee, such commodities do not become subject to state regulation, restraining their sale or disposition. *** Valid as the Kentucky legislation undoubtedly was as a regulation in respect to intrastate shipments of such articles, it was most obviously never an effective enactment in so far as it undertook to regulate interstate shipments to dry points. Pending this very litigation, the Kentucky Court of Appeals, upon the authority of the line of cases above cited, reached the same conclusion. Cincinnati, N. O. & T. P. R. Co. v. Commonwealth, 126 Ky. 563 [104 S.W. 394, 31 Ky. Law Rep. 954]. The obligation of the railroad company to conform to the requirements of the Kentucky law, so far as that law prohibited interstate shipments, is clear, and to this extent its circular notification was commendable. But the duty of this company, as an interstate common carrier for hire, to receive for transportation to consignees upon its line in Kentucky from consignors in other states any commodity which is an ordinary subject of interstate commerce and such transportation could not be prohibited by any law of the state of such consignee, inasmuch as any such law would be an unlawful regulation of interstate commerce not authorized by the police power of the state. It is obvious, therefore, that, in so far as the Kentucky statute was an illegal regulation of interstate commerce, it neither imposed an obligation to obey, nor affords an excuse for refusal to perform the general duty of the railroad company as a common carrier of freight."

This court in Cincinnati, New Orleans & Texas Pacific Railway Co. v. Commonwealth, 126 Ky. 563, 104 S.W. 394, 31 Ky. Law Rep. 954, and many other cases, has also ruled that section 2569a was ineffective to interfere with or prohibit interstate shipments of liquor.

In view of these decisions, it is at once apparent, as conceded by the commonwealth, that, before the enactment of the Webb-Kenyon Law, the express company as a common carrier...