Danciger v. Stone

• Decision Date: 18 January 1910
• Docket Number: 1,232.
• Citation: 188 F. 510
• Parties: DANCIGER et al. v. STONE et al.
• Court: U.S. District Court — Eastern District of Oklahoma

188 F. 510

DANCIGER et al. v. STONE et al.

No. 1,232.

United States Circuit Court, E.D. Oklahoma.

January 18, 1910

E. H Busiek, for complainants.

Fred S Caldwell, for respondents.

CAMPBELL District Judge.

At the hearing, respondent's demurrer and the complainant's application for temporary injunction were heard together. At the completion of the hearing, the court announced that unless the demurrer should be sustained, the complainants were entitled to the temporary injunction prayed for, upon the showing made; it appearing that, since the decision of this court in a former case (187 F. 853) in which they were complainants, they have not solicited the purchase of liquors within this district, and are not now doing so. The demurrer was taken under advisement, and the parties given time within which to file briefs in support of their respective contentions, which they have now done.

The complainants allege in their bill that their principal method and custom of making shipments into other states, including the state of Oklahoma, is to receive mail orders for shipments from customers outside of the state of Missouri for sales and shipments of liquors to be made in Missouri, and directed to other states; that, after said orders are accepted by complainants, the liquors are delivered at Kansas City, Mo., to various railroad companies and other common carriers, transporting freight from said state of Missouri to such other states; that in all cases where goods are sold and delivered to the carrier in Kansas City, Mo., the said sales are made outside of the state of Oklahoma, and the goods are delivered to the carrier for the purpose of making delivery to the consignee only. Complainants further allege: That after delivering said liquors to carriers for shipment, as aforesaid, in the state of Missouri, they receive from the carrier a bill of lading and forward said bill of lading to a bank, or some responsible person, at the home of the consignee, attached to which is a sight draft for the purchase price of the liquor. The customer pays the draft and receives the bill of lading, and presents the same to the railroad company and receives the shipment. That this method is what is known to the railroad, and to the public generally, as 'shipper's order,' 'order notify,' or 'sight draft and bill of lading' method.

Respondents contend that complainants are not entitled to the protection of the commerce clause of the Constitution, for the reason that their method of business, as stated in their bill, amounts to a sale of liquor within the state of Oklahoma, and is, therefore, a violation of the state prohibitory law. In the opinion of the court, this question is determined adverse to respondent's contention by the ruling of the Supreme Court of the United States in American Express Co. v. Iowa, 196 U.S. 133, 25 Sup.Ct. 182, 49 L.Ed. 417.

It is further and especially urged by respondents that complainants cannot invoke the aid of a court of equity because it appears from their bill that their business is carried on and conducted in direct violation of section 239 of an act of Congress approved March 4, 1909, c. 321, 35 Stat. 1136, which reads as follows:

'Any railroad company, express company, or other common carrier, or any other person who, in connection with the transportation of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one state, territory, or district of the United

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