Keith v. State

• Decision Date: 11 December 1890
• Citation: 91 Ala. 2,8 So. 353
• Parties: KEITH v. STATE. RION v. SAME.
• Court: Alabama Supreme Court

8 So. 353

91 Ala. 2

KEITH v. STATE.

RION v. SAME.

Supreme Court of Alabama

December 11, 1890

J H. Disque, for appellants.

W L. Martin, Atty. Gen., for the State.

CLOPTON J.

These cases, involving the same questions, were submitted, and will be considered together.The appellants were separately indicted, and convicted for selling whisky in De Kalb county in violation of the provisions of a statute prohibiting the sale or otherwise disposing of spirituous, vinous, or malt liquors, in the county of De Kalb.Acts 1880-81, p. 167.The sale by each of the appellants within 12 months before the finding of the indictment is clearly proved.The defense is that the liquor was imported into this state from another state, and sold by appellants, as the agents of the importer in the original packages in which it was shipped.Before the passage of the late act of congress, intoxicating liquors could be imported from one state into another, and there sold, without subjecting the seller to the punishment imposed by the state prohibition law, provided the original package was not broken; the supreme court of the United States having decided, in Leisy v. Hardin,135 U.S. 100, 10 S.Ct 681, that the right of importation of distilled liquors from one state into another includes the right to sell in the original packages at the place where the importation terminates, and that a state statute. prohibiting the sale of intoxicating liquors, as applied to a sale by a non-resident importer in the original packages, unbroken and unopened, in which they were brought from another state, in the absence of congressional permission, is repugnant to the clause of the constitution, granting to congress the power to regulate commerce with foreign nations, and among the several states, and is inoperative.The decision being binding on this court, it is our duty to recognize it as authoritative in all cases coming within its scope and purview.According to the principle of the decision, however, the constitutional protection terminates "when the importer has so acted upon it that it has become incorporated and mixed up with the general mass of property in the country, which happens when the original package is no longer such in his hands,"-when it is opened and broken.When this occurs, the state may interfere to prohibit its sale.Under the influence of the decision, the question is narrowed by the facts of the present cases to the inquiry whether the liquor was sold by the appellants in the original packages, unbroken, which involves the further question, what constitutes an "original package for importation," in the meaning of the decision?A succinct statement of the facts in each case, which vary somewhat, is necessary to a proper understanding of the precise question involved.In Rion's Case, the liquor was shipped by B. L. Lowenthall & Son, wholesale and retail dealers, residing and doing business in Nashville, Tenn., in half-pint, pint, and quart bottles.The bottles were separately wrapped in tissue paper, each labeled "Original Package," with the name of the importer, and shipped in an open box, with hay laid between them, each box marked with the number of bottles, and their sizes contained therein.From the bill of lading put in evidence, it appears that the boxes contained 1,075 bottles, and 25 jugs of liquor, and that, shipped at the same time, were 20 casks, containing bottles of beer, and 3 casks, containing bottles of ale.This was done to facilitate the shipment.Rion sold the whisky, as the agent of the importer, by the single bottle, wrapped and labeled in the manner stated.On these facts, the question arises whether the bottles, having been placed and shipped in an open box, each bottle, or the box containing them, constituted the original package.The small size of the packages, if the bottles be otherwise considered original packages, should have no bearing upon the answer to this question.As was said in Re Beine,42 F. 545, the importer may determine, in the absence of a regulation by congress, the form and size of the packages he puts up for export.We do not controvert the proposition that, under the decision of the supreme court, intoxicating liquors may be shipped in single bottles, as distinct and separate packages, and that the importer, in such case, has the right to sell a single bottle, as in the original package.Conceding this, was the liquor sold by Rion so shipped?In re Beine, supra, sheds no light upon this question.In that case, single bottles of beer and whisky, packed and sealed, or nailed up in boxes of pasteboard, or wood, were shipped and sold in that shape.The boxes containing one bottle were not packed in any other box.In this case, the bottles separately wrapped in paper were shipped in a box, and sold singly.Merely labeling each bottle "Original Package" did not make it one, if it was not really an original package.The term "to pack," in its ordinary signification, especially when used in reference to carriage, means to place together and prepare for...