McCollum v. McConaughy

• Decision Date: 10 February 1909
• Citation: 119 N.W. 539,141 Iowa 172
• Parties: MCCOLLUM v. MCCONAUGHY.
• Court: Iowa Supreme Court

141 Iowa 172

119 N.W. 539

MCCOLLUM

v.MCCONAUGHY.

Supreme Court of Iowa.

Feb. 10, 1909.

Appeal from District Court, Washington County; B. W. Preston, Judge.

Action in equity to enjoin the defendant from continuing to maintain a place for carrying on the business of soliciting, taking, and accepting orders for the purchase, sale, and shipment of intoxicating liquors for and on behalf of a corporation located in Kentucky, thereby creating and maintaining a nuisance. A demurrer to the petition was overruled, and defendant elected to stand upon his demurrer, and refused to plead further, whereupon the court entered a decree as prayed, and defendant appeals. Affirmed.W. A. White, for appellant.

H. W. Byers, Atty. Gen., C. A. Dewey, Co. Atty., and S. W. & J. L. Brookhart, for appellee.

W. H. Butterfield and Guernsey, Parker & Miller, amici curiæ.

McCLAIN, J.

The acts which defendant was enjoined from committing or continuing were acts in violation of the provision of Code, § 2382, as amended by Acts 28th Gen. Assem. p. 59, c. 74 (Code Supp. 1907, § 2382), prohibiting any person from soliciting, taking, or accepting “any order for the purchase, sale, shipment or delivery of any [intoxicating] liquor”; and the sole question presented is as to the constitutionality of the statutory provision as applied to one who solicits orders for intoxicating liquors as the agent of a resident of another state, which orders are to be submitted to the principal in such other state and filled, if accepted, by shipment of the liquor order directly from such other state to the purchaser in this state. In the case of State v. Hanaphy, 117 Iowa, 15, 90 N. W. 601 (followed in State v. Bernstein, 129 Iowa, 520, 105 N. W. 1015), it was held that this statutory provision was unconstitutional, on the ground that it was an unwarranted restraint upon freedom of interstate commerce, and therefore in violation of article 1, § 8, of the Constitution of the United States. It is conceded that, unless the cases above cited are to be overruled, the demurrer in this case should have been sustained; but the contention for appellee is that in the recent case of Delamater v. South Dakota, 205 U. S. 93, 27 Sup. Ct. 447, 51 L. Ed. 724, the Supreme Court of the United States has upheld the constitutionality of a state statute imposing a license tax upon the business of soliciting orders for the shipment of liquor to a purchaser from another state, as against the objections which were held to be controlling in our prior decisions, and that, as the final tribunal in the construction of the federal Constitution has interpreted it as not precluding such legislation, we should now sustain our own statute and overrule our former cases. It is evident from the reading of the opinion in the Hanaphy Case that the controlling consideration in reaching the conclusion that the statute was unconstitutional was the interpretation which it was thought the Supreme Court of the United States had given to the interstate commerce clause of the federal Constitution as affecting the validity of the statute, and that if the recent decision had then been announced, and had been considered by this court as applicable to the legislation in question, a contrary decision would have been reached. We have then only two questions to consider: First, whether the recent decision of the United States Supreme Court sustains the validity of such a statute as ours against the objection that it is an undue interference with interstate commerce; and, second, whether we should on that account overrule our previous decisions, and sustain as valid the statute which was in those decisions held to be unconstitutional.

1. The statute of South Dakota which was under consideration by the Supreme Court of the United States in its recent decision provided for the punishment, as a misdemeanor, of the act of carrying on “the business of selling or offering for sale” intoxicating liquors within the state, “by any traveling salesman who solicits orders by the jug or bottle in lots less than five gallons,” without paying an annual license charge imposed by the statute; and it is argued that a decision sustaining this statute is not applicable to our statutory provision entirely prohibiting the soliciting, taking, or accepting, orders for the purchase, sale, shipment, or delivery of such liquor, for the reason that the South Dakota statute was a mere regulation of license in the exercise of the police power, while our statute is absolutely...