Adams Express Company v. Commonwealth No. 1835.
| Decision Date | 27 April 1906 |
| Citation | 124 Ky. 160 |
| Parties | Adams Express Company v. Commonwealth No. 1835 |
| Court | Kentucky Court of Appeals |
Appeal from Knox Circuit Court.
Defendant convicted and appeals. Affirm.ed.
LAWRENCE MAXWELL, JR., JOSEPH S. GRAYDON, W. L. BROWN and C. W. METCALF for appellant.
COPYRIGHT MATERIAL OMITTED
N. B. HAYS, Attorney General, and C. H. MORRIS for appellee.
The appellant was indicted by the grand jury of Knox county, Ky., for a violation of the prohibition law prevailing therein. The indictment contains much surplusage with reference to what is called the "C. O. D. Statute," and as to the manner in which the Adams Express Company received the whisky said to have been sold by it in contravention of law. Stripped of all unnecessary verbiage, the indictment contains a statement sufficient to charge the defendant company with a sale of liquor by retail, in violation of the prohibition statute applicable to Knox county; and as to the unnecessary allegations, they may be dismissed from view under the shelter of the maxim "utile, per inutile non vitiatur." The defendant company pleaded not guilty, and the case was submitted to the court on the law and facts — the intervention of a jury being waived — resulting in an adverse judgment against it.
The evidence showed, for the commonwealth, the delivery by the defendant's agent, J. A. Owens, to one J. D. Main, of a gallon of whisky, for which he paid $3.85, which the agent at once transmitted to the shipper of the whisky in Cincinnati; also that Main did not order the whisky, and did not know the name of the consignor, but it was shipped to him at Barbourville, Knox county, Ky., from Cincinnati, by the Adams Express Company, C. O. D. This is but a small part of a general system prevailing by which unscrupulous dealers in whisky undertake through the facile aid of express companies, to evade the prohibition laws in effect in certain counties in the State, and retail liquor therein in violation of the laws forbidding such traffic. By this system the names of the men accustomed to drink whisky are obtained by the dealers, and then, without any order therefor, or any contract whatever, the whisky in gallon packages is sent to various small towns throughout the prohibition counties addressed to the parties whose names are thus acquired. The express company does not notify the involuntary consignee, but simply holds the whisky in its warerooms, and the party in whose name the liquor had been expressed receives notice, either by postal from the consignor, or by some local agent of his in the county, that there is an express package for him and then, whenever the thirst for liquor becomes sufficiently strong to tempt him to pay the express charges and take it out of the express office, this is done. The name of the consignor is not known by the involuntary consignee, and the address for the return of the money is the number of a lock box in the Cincinnati post-office. After the involuntary consignee becomes sufficiently acquainted with the system existing between the consignor and the express company, he finds that a gallon of liquor is generally kept at the express office subject to his order and the payment of charges, and he goes there for it with the same confidence that he would go to an ordinary dealer. The evidence in this case shows that, within six months next before the trial, J. D. Main had taken from the Adams Express Company's office at Barbourville, Ky., as many as 20 separate packages of whisky, of a gallon each, and the testimony of the express agent shows that he often had as many as 50 gallons of whisky on hand at one time consigned to various parties under the same system. Frequently, several parties club in and take out whisky together, dividing it in proportion to the amounts paid in by each; it being a rigid rule of the defendant company never to deliver the whisky to any person other than the named consignee. It was stipulated between the commonwealth and the defendant that the whisky in question was shipped from Cincinnati in the ordinary course of the express business.
The first and crucial question in this case is whether or not the shipment and delivery of the whisky was an act of interstate commerce. If so, it may be conceded that the defendant should go acquit; if not, it is practically conceded that the acts of the defendant constituted a sale of liquor in Knox county in violation of the prohibition law. We do not think the amendment of the prohibition law commonly denominated the "Farris," or "C. O. D." law has any bearing upon the merits of the offense under discussion. The learned counsel for appellant hinge the whole defense on the fact that the act of the express company constituted the carrying on of inter-state commerce, and the C. O. D. law, being an attempt to regulate inter-state commerce, which admittedly is under the exclusive regulation of the Congress of the United States, is for that reason void. This may be conceded. However, if the C. O. D. amendment was stricken from the statute book entirely, it would not affect in any way the merits of the transaction under investigation as we see it. The prohibition statute, without the amendment, forbids, under penalty, the sale of liquor by retail in Knox county; but neither the statute itself, nor the amendment thereto, undertakes to regulate inter-state commerce. No State statute can affect inter-state commerce, and the Legislature did not attempt to do so by that in question.
We do not agree to the proposition that the transaction which took place between the express company and J. D. Main in Knox county was interstate commerce. Nor do we agree with the Attorney General in his view of the effect of the Wilson bill upon the transaction in hand. As we understand him, he insists that, although the shipment from Cincinnati be conceded to have been a legitimate act of interstate commerce in its original inception, yet after the goods arrived in Barbourville, if kept overtime in a wareroom, then the transaction ceases to be one of interstate commerce, and becomes one of local commerce. We do not understand the Wilson bill, as construed by the Supreme Court of the United States, to have this effect upon a shipment of the kind under discussion. Without naming the decisions, or discussing them with minute particularity, we understand the Supreme Court to have decided, in the various cases cited in the briefs of counsel, that, where the whisky is purchased in a foreign State, it may be shipped by the seller to the buyer into a State where the sale of liquor is prohibited by law; that it is interstate commerce, unaffected by the local law, until it is delivered to the consignee, and the mere lapse of time, or the particular place where the goods are kept until called for, have no effect to change the quality of the transaction so that it ceases to be interstate commerce before the delivery. If this were not true, then if the consignee happened to be absent from home, or refuse to call for his goods promptly, that which was a legitimate transaction in its original inception would become vicious and illegal by the mere lapse of time occasioned by the negligence of the consignee. If the transaction be interstate commerce originally, it continues so until the goods are delivered into the hands of the consignee.
But was this transaction interstate commerce? No contract of purchase is even pretended to have been made in Cincinnati. So far as the consignor is concerned, he simply shipped his illegitimate goods into the State of Kentucky to a point where...
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