Adams Express Co. v. Commonwealth

• Decision Date: 06 October 1914
• Citation: 169 S.W. 603,160 Ky. 66
• Parties: ADAMS EXPRESS CO. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

169 S.W. 603

160 Ky. 66

ADAMS EXPRESS CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 6, 1914

Appeal from Circuit Court, Laurel County.

Lawrence Maxwell and Joseph S. Graydon, both of Cincinnati, Ohio, and George G. Brock, of London, Ky. for appellant.

James Garnett, Atty. Gen., for the Commonwealth.

HOBSON C.J.

The Adams Express Company, a common carrier, was indicted in the Laurel circuit court for bringing into and delivering whisky in that county, where the local option law is in force. On the trial of the case the following agreed statement of facts was read to the jury:

(1) The Adams Express Company is an association organized under the laws of the state of New York, doing business as a common carrier, and having an agency at Jellico, Tenn., and at London, Ky.

(2) On November 14, 1913, and within 12 months before the filing of the indictment, James Cheek, who resided in Laurel county about 12 miles from London, ordered from a wholesale liquor dealer in Jellico, Tenn., four gallons of whisky to be shipped to him by the Adams Express Company; he remitting in the letter the money to pay for the whisky. The dealer received the letter and delivered the whisky to the Express Company at Jellico, Tenn., consigned to James Cheek at London, Ky. The express company transported the package to London, and there delivered it to James Cheek, "as a public common carrier for hire, and in its usual course of business, and within 12 months before the filing of the indictment in this case."

(3) At that time all sales of liquor in Laurel county were prohibited by law.

(4) "When the consignment was received at London, the said company's agent at London did not know said Cheek, but believed in good faith that the liquor had been ordered for his own personal use, and, under that belief, it delivered the consignment to said Cheek."

(5) After receiving the whisky, Cheek in Laurel county sold by retail to different persons a greater part of the whisky before the indictment was made; he purchased the whisky chiefly for the purpose of selling it in Laurel county.

(6) At the time the whisky was delivered to Cheek neither the company nor any agent of it knew that he intended the liquor for any purpose other than his own personal use.

(7) At the time of ordering and receiving the whisky, Cheek intended to sell it in Laurel county; "but the defendant, nor any agent, steward, nor employé of it did not have knowledge or belief that such was his intention."

(8) The defendant knew at the time it was contrary to law to sell whisky by retail in Laurel county.

(9) When the defendant delivered the whisky to Cheek the act of Congress known as the Webb-Kenyon Act (Act March 1, 1913, c 90, 37 Stat. 699) was in full force.

(10) Cheek was not a physician or licensed druggist.

This was all the evidence. The defendant moved the court to instruct the jury on these facts to find it not guilty. The court overruled the motion, and on motion of the commonwealth instructed the jury that on these facts, they should find the defendant guilty. The jury reurned a verdict finding it guilty and fixing its punishment at a fine of $75. The court refusing to grant a new trial, entered judgment on the verdict; the defendant appeals.

Section 2569a, Ky. St., omitting some provisions not material here, is as follows:

"It shall be unlawful for any * * * public or private carrier to bring into, * * * deliver or distribute, in any county, district, precinct, town or city, where the sale of intoxicating liquors has been prohibited, * * * 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. * * * Any * * * public or private carrier violating the provisions of this act shall be deemed guilty of violating the local option law and shall be fined not less than fifty nor more than one hundred dollars for each offense. * * * And the place of delivery of such liquors shall be held to be the place of sale. * * *"

That this statute is constitutional and operative as to intrastate shipments of intoxicants is well settled. But prior to the passage of the Webb-Kenyon Act, it had no operation as to interstate shipments, such as that complained of in this case. Adams Express Co. v. Com., 129 Ky. 420, 112 S.W. 577, 18 L.R.A. (N. S.) 1182; L. & N. R. R. Co. v. Cook Brewing Co., 223 U.S. 70, 32 S.Ct. 189, 55 L.Ed. 355. The provisions of the Webb-Kenyon Act enacted March 1, 1913, are as follows, omitting some verbiage not material here:

"That the shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one state * * * into any other state, * * * which said spirituous, vinous, malted, fermented or other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state, * * * is hereby prohibited."

It will be observed that this act does not prohibit the shipment or transportation of intoxicants under all circumstances from one state into another; but only prohibits the shipments of such liquors as are "intended by any person interested therein to be received, possessed, sold or in any manner used, either in the original package or otherwise, in violation of any law of such state." Unless the liquor is intended by some person interested therein to be received, possessed, sold or used in violation of the law of the state, the act does not apply to it. We accordingly held in Adams Express Co. v. Commonwealth, 154 Ky. 462, 157 S.W. 908, 48 L.R.A. (N. S.) 342, that the act does not apply to shipments of whisky from another state into this state, where the consignee gets it simply for his personal use, there being no law of this state making it unlawful for a person to receive or possess intoxicants in this state for his own personal use. That decision followed the plain language of the act, as well as the express construction put upon it by Mr. Webb and Senator Kenyon in their speeches in advocacy of it on the floor of Congress; and the same view has been taken so far as we are advised by all the courts of last resort, before whom the question has been presented. Atkinson v. Southern Express Co., 94 S.C. 444, 78 S.E. 516, 520, 48 L.R.A. (N. S.) 349; Palmer v. Southern Express Co. (Tenn.) 165 S.W. 236; Van Winkle v. State of Delaware (Del.) 91 A. 385. But this case differs from that. Here it is agreed that Cheek ordered and received the whisky for the purpose of selling it in Laurel county in violation of law, thus bringing the case literally within the provisions of the Webb-Kenyon Act. So the first question in the case is: Is that act valid?

It is insisted for the appellant that the transaction in controversy being fundamentally interstate, Congress alone can exercise control over it, and no control over it can be exercised by the state. By subsection 3 of section 8 of article 1 of the Constitution of the United States, Congress has power to regulate commerce among the several states. The power to regulate carries with it the power to determine what shall be legitimate commerce, and to prohibit commerce which is deemed to be illegitimate. The words "commerce among the several states" mean legitimate commerce, and when Congress has determined that certain commerce is not legitimate, it has exercised its power, and such commerce is no longer protected by the federal Constitution. When acts which are forbidden by Congress are done within a state and in violation of its laws, the state may punish the infraction of its laws for the reason that Congress has placed these acts beyond the pale of interstate commerce. The Constitution of the United States was framed by a convention composed of the citizens of the several states, and before it became effective, it was adopted by the states. It must receive a reasonable interpretation within the just contemplation of those who made and adopted it. The reason for giving Congress the power to regulate commerce among the...