Kirtley v. Oregon Short Line R. Co.

Decision Date28 November 1917
PartiesH. P. KIRTLEY, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
CourtIdaho Supreme Court

INTOXICATING LIQUORS-DELIVERY OF-PROHIBITION DISTRICT-INTERSTATE SHIPMENT-POLICE POWER.

1. Under sec. 25, S. B. 62, Sess. Laws 1909, p. 17, which provides that, "Any persons.... who shall ship transport or deliver any intoxicating liquors to any person.... in any prohibition district in the state of Idaho, or to any point or place in this state where the sale of intoxicating liquors is prohibited by law.... shall be guilty of a misdemeanor" It is a misdemeanor to deliver intoxicating liquor to any person in such place, without regard to whether the liquor is intended for sale, or merely for his personal use, and this notwithstanding the fact that the act does not make mere possession a crime, nor does the fact it was interstate shipment alter the rule.

2. The above section held to be a valid exercise of the police power.

[As to validity of statute forbidding bringing of liquor into prohibition territory, see note in Ann.Cas. 1917A, 740]

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. F. J. Cowen, Judge.

Action to compel delivery of beer in a prohibition district. Judgment for plaintiff reversed.

Judgment of the trial court reversed. Costs awarded to appellant.

George H. Smith and H. B. Thompson, for Appellant.

It was unlawful for the carrier to deliver and for Kirtley to receive the liquor in Bannock county at the time of the institution of the suit and at the time of the entry of judgment. (In re Crane, 27 Idaho 671, 151 P. 1006; Crescent Brewing Co. v. Oregon Short Line Ry. Co., 24 Idaho 106, 132 P. 975.)

The Idaho laws and the Webb-Kenyon Act prohibited the delivery of the shipment. (American Express Co. v. Beer, 107 Miss. 528, Ann. Cas. 1916D, 127, 65 So. 575; H. Clark &amp Sons v. Southern Express Co., 203 F. 588; State v Seaboard Air Line Ry., 169 N.C. 295, 84 S.E. 283; State of W.Va. v. Adams Express Co., 219 F. 794, 135 C. C. A. 464; Atkinson v. Southern Express Co., 94 S.C. 444, 78 S.E. 516, 48 L. R. A., N. S., 349; Bristol Distributing Co. v. Southern Express Co., 117 Va. 7, 83 S.E. 1084; State v. United States Express Co., 164 Iowa 112, 145 N.W. 451; State v. Grier, 4 Boyce (Del.), 322, 88 A. 579; Adams Express Co. v. Commonwealth, 160 Ky. 66, 169 S.W. 603; Adams Express Co. v. Crigler, 161 Ky. 89, 170 S.W. 542; Smith v. Southern Express Co., 166 N.C. 155, 82 S.E. 15; Southern Express Co. v. City of High Point, 167 N.C. 103, 83 S.E. 254; Hamm Brewing Co. v. Chicago, R. I. & P. Ry. Co., 215 F. 672.)

H. W. Lockhart, for Respondent.

Intoxicating liquors being property, are legitimate subjects of interstate commerce. (Louisville & N. R. Co. v. F. W. Cook Brewing Co., 223 U.S. 70, 32 S.Ct. 189, 56 L.Ed. 355.)

"Police power" is not an all-embracing term, particularly when it is applied to a subject matter falling within the commerce between the several states; and even when applied to intoxicants, which in the view of the federal government are subject to the same rules as other commodities. (Bowman v. Chicago etc. Ry. Co., 125 U.S. 465, 8 S.Ct. 689, 31 L.Ed. 700.)

Even when Congress was silent upon the subject of regulation, a statute prohibiting the sale of imported liquor by the consignee in the original package was held void. (Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128.)

To prohibit the delivery to the individual would have been tantamount to prohibiting interstate commerce in that which under the laws of the United States was the subject of property. (In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572; Rhodes v. Iowa 170 U.S. 412, 18 S.Ct. 664, 42 L.Ed. 1088; Vance v. W. A. Vandercook Co., 170 U.S. 438, 18 S.Ct. 674, 42 L.Ed. 1100; Louisville & N. R. Co. v. F. W. Cook Brewing Co., 223 U.S. 70, 32 S.Ct. 189, 56 L.Ed. 355.)

"The keeping of liquors in his possession by a person, whether for himself or for another, unless he does so for the illegal sale of it, or for some other improper purpose, can by no possibility injure or affect the health, morals, or safety of the public; and therefore the statute prohibiting such keeping in possession is not a legitimate exertion of the police power. It is an abridgment of the privileges and immunities of the citizen without any legal justification, and therefore void." (Ex parte Brown, 38 Tex. Cr. 295, 70 Am. St. 743, 42 S.W. 554; Beebe v. State, 6 Ind. 501, 63 Am. Dec. 391; Commonwealth v. Turner (Ky. App.), 118 S.W. 1199; State v. Williams, 146 N.C. 618, 14 Ann. Cas. 562, 61 S.W. 61, 17 L. R. A., N. S. , 299; Eidge v. City of Bessemer, 164 Ala. 599, 51 So. 246, 26 L. R. A., N. S., 394; Martin v. Commonwealth, 153 Ky. 784, 156 S.W. 870, 45 L. R. A., N. S., 957; Adams Express Co. v. Commonwealth, 154 Ky. 462, 471, 157 S.W. 908, 48 L. R. A., N. S., 342; State v. Gilman, 33 W.Va. 146, 10 S.E. 283, 6 L. R. A. 847:)

The police power does not extend to the deprivation of a citizen of the right to have intoxicating liquor in his possession for his own use. (Commonwealth v. Campbell, 133 Ky. 50, 19 Ann. Cas. 159, 117 S.W. 383, 24 L. R. A., N. S., 172; Commonwealth v. Smith, 163 Ky. 227, 173 S.W. 340, L. R. A. 1915D, 172; Titsworth v. State, 2 Okla. Cr. 268, 101 P. 288; Sullivan v. Oneida, 61 Ill. 242; Freund on Police Power, 453, 454; Black on Intoxicating Liquors, p. 50.)

It did not appear in Ex parte Crane, 27 Idaho 671, 151 P. 1006, that the possession of the intoxicants for personal use was protected by the common clause of the constitution of the United States and the fourteenth amendment thereof, whereas in the case at bar it clearly appears that the protection exists.

Never before has a law been enacted which baldly and flatly took from the owner of property the whole dominion thereover without due process of law and without compensation. The law of Idaho is unconstitutional on this ground. (Wynehamer v. People, 13 N.Y. 378; 2 Park. Cr. (N. Y.) 421, affirming 2 Park. Cr. (N. Y.) 377; 12 How. Pr. (N. Y.) 238, reversing 20 Barb. (N. Y.) 567; People v. Toynbee, 2 Park. Cr. (N. Y.) 329; Berry v. De Maris, 76 N.J.L. 301, 70 A. 337.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

This was an action in claim and delivery brought by respondent to recover from appellant one case of beer, or in the event that delivery could not be made, the value thereof. The beer was purchased by respondent solely for his own personal use, from the Becker Brewing & Malting Company, at Ogden, Utah, on September 2, 1914, which company delivered the beer, at the request of respondent, to appellant railroad company at Ogden and the shipment was consigned to respondent at Pocatello, Bannock county, Idaho, which was then in a prohibition district. The beer arrived in Pocatello September 3, 1914, whereupon respondent demanded its possession but appellant refused to deliver it, basing its refusal upon the ground that such delivery would be in violation of sec. 25 of S. B. 62, Sess. Laws 1909, p. 17, and the Webb-Kenyon law (Act Cong. Mch. 1, 1913, c. 90, 37 Stat. 699, Comp. Stats. 1916, sec. 8739). Upon these facts, which were stipulated, and upon this issue, which was made up by the pleadings, the trial court found that respondent was entitled to the relief prayed for, and entered judgment accordingly. This appeal is from the judgment.

The error assigned is: That the court erred in finding that respondent was entitled to judgment as prayed for in his complaint, and in awarding judgment for the possession of the beer.

The contention of respondent is, that inasmuch as the 1909 law did not make the possession of intoxicating liquor for private use unlawful per se, the shipments, transportations and deliveries of intoxicating liquor contemplated by sec. 25 thereof, were only such as were intended to be put to some use prohibited by the law, and that the section cannot be interpreted to apply to any shipment, transportation or delivery of intoxicating liquor where the same was clearly intended for private use. And it is further contended by respondent that the police power does not extend to the deprivation of the right of a citizen to have intoxicating liquor in his possession for his own use; that intoxicating liquor is property; that if the decision had been for appellant it would have amounted to the taking of respondent's property without due process of law; that the Webb-Kenyon law was never intended to deprive any person of the right to procure intoxicating liquor through an interstate shipment for his private use; and that a contrary view would render both the Webb-Kenyon law and sec. 25 of our own statute unconstitutional. However, since the judgment in this case was entered, the supreme court of the United States, in Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, Ann. Cas. 242 U.S. 311, 1917B, 845, 37 S.Ct. 180, 61 L.Ed. 326, L. R. A. 1917B, 1218, has decided two of these contentions adversely to respondent: First, that the Webb-Kenyon law is constitutional; second, that it "took the protection of interstate commerce away from all receipt and possession of liquor prohibited by state law." Further, the decision of this court in In re Crane, 27 Idaho 671, 151 P. 1006, resolves the contention of respondent, that the police power does not extend to the deprivation of the right of a citizen to have intoxicating liquor in his possession for his own use, against him.

It remains to consider what interpretation shall be put upon sec. 25 of the 1909 law, when read in connection with the Webb-Kenyon Act. Sec. 25 provides: "Any person, firm corporation, society or club within this state who shall accept for shipment,...

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