McGregor v. Cone

• Decision Date: 24 January 1898
• Citation: 73 N.W. 1041,104 Iowa 465
• Parties: DONALD C. MCGREGOR, Appellant, v. JOHN CONE
• Court: Iowa Supreme Court

73 N.W. 1041

104 Iowa 465

DONALD C. MCGREGOR, Appellant, v. JOHN CONE

Supreme Court of Iowa, Des Moines

January 24, 1898

Appeal from Cedar Rapids Superior Court.--HON. T. M. GIBERSON Judge.

THIS is a habeas corpus proceeding in which plaintiff and appellant alleges that he was unlawfully restrained of his liberty by defendant, who is sheriff of Linn county, under a warrant of commitment issued by one Rall, a justice of the peace in and for said county, in pursuance of a judgment of conviction for violation of what is familiarly known as the "Anti-Cigarette Law." Plaintiff says that his commitment was and is illegal, for the reason that while he sold cigarettes, yet that the same were sold in the "original package" in which imported, and that the law under which he was convicted is unconstitutional in so far as it applies to such sales. The trial court remanded the petitioner, and from the order and judgment so entered he appeals.

Affirmed.

W. W Fuller and John W. Redmond for appellant.

J. W Grimm, county attorney, and Milton Remley, attorney general, for the state.

OPINION

DEEMER, C. J.

The case was tried upon the following agreed statement of facts: "The defendant purchased in Illinois from the American Tobacco Company, a corporation organized under the laws of the state of New Jersey, and having a factory for the manufacture of cigarettes in the city of New York and state of New York, a number of packages of cigarettes, manufactured at its said factory in New York by said company. Each said package so purchased contained ten cigarettes, and had upon it the label bearing the name or brand of the cigarettes contained in it, the caution notice, the number of the factory and of the revenue district in which the factory was located, the name of the state in which such factory was, the name of the manufacturer, and the internal revenue stamp for ten cigarettes, duly canceled, pasted across the end of each of said packages so as to seal the same (which said stamp had to be broken and destroyed in opening said package), and all other requirements of the acts of congress and of the internal revenue laws governing the packing, shipment, and sale of cigarettes. The packages of cigarettes so purchased by said defendant of said company were placed in a common pine box, for convenience of shipment, without any other packing or inclosure around or about said packages of ten cigarettes each, and were so shipped by said company to said defendant by a common carrier, from the factory of said company in the city of New York, in the state of New York, to the warehouse and offices of said company in the city of Chicago, in the state of Illinois, and from Chicago, in the state of Illinois, shipped by said company in the same package, without opening the same, to the defendant, in Cedar Rapids, in the state of Iowa by common carrier. Upon the arrival of such pine box at the place of business of defendant in Cedar Rapids, in the state of Iowa he opened said pine box, by taking the lid therefrom, and sold one of the packages, containing ten cigarettes, in Cedar Rapids, Linn county, Iowa on July 10, 1896, to Andrew Harmon. The remaining packages of cigarettes were not removed from said pine box, and are still therein as they were received. The one package, of ten cigarettes, sold to said Andrew Harmon, was of like kind in every respect with the other packages in the same box, and said Andrew Harmon was not a customer outside of the state, but resided in the state of Iowa." It further appears that the American Tobacco Company submitted to the department of internal revenue of the general government a sample package of cigarettes similar to the one for the selling of which appellant was convicted, and received the following letter in response: "American Tobacco Company, No. 45 Broadway, New York, N. Y.--Gentlemen: In reply to your inquiry of April 3d, submitting a sample package of cigarettes bearing thereon the internal revenue stamp and the printed marks and caution label, and inquiring as to the necessity for a reinclosing, in an additional covering of paper, wood, or other material in placing the same upon the market, you are notified that said package being a statutory quantity, and properly stamped and canceled, and bearing thereon the caution label and the number of the manufactory, the district and state, and the number of cigarettes contained therein, meets with the approval of this bureau, being a proper and original package, as contemplated by existing laws and regulations. Therefore, the repacking of said packages in additional coverings of wood, paper, etc., is optional with the manufacturer, and does not concern this bureau. The option is permissible, under existing regulations (series 7, No. 8, Revised, page 46, and Internal Revenue Record, Vol. 32, page 365, dated November 22, 1886). Respectfully yours,

"[Signed.] John W. Mason, Commissioner."

The so-called "Anti-Cigarette Law," being chapter 96 Acts Twenty-sixth General Assembly, prohibits the sale of cigarettes within this state by all persons whomsoever, save jobbers doing an interstate business with customers outside of the state. Appellant contends that this law is unconstitutional, in so far as it interferes with commerce among the several states; that the package which he sold was an "original package;" and that his detention was and is illegal. This statute was enacted in virtue of the police power of the state, and, unless it infringes upon some constitutional provision, it is undoubtedly valid. The contention is, however, that the statute is invalid in so far as it interferes with, interrupts, or embarrasses interstate commerce; on the theory that the federal constitution (article 1, section 8) confers upon congress the exclusive right to regulate commerce among the several states. It seems to be well settled by the later decisions of the United States court that, while the states have the undoubted right to control their purely internal affairs, yet whenever the law enacted in the exercise of this power amounts to a regulation of commerce among the states, as it does when it directly or indirectly inhibits the receipt of an imported commodity, or its disposition, before it has ceased to become an article of trade between one state and another, it comes in conflict with a power which has been invested in the general government, and is therefore void. That the use of the article is deleterious to the inhabitants of the state is not regarded as material, so long as it is recognized by the commercial world, by the laws of congress, and by the decisions of the courts as a commodity in which a right of traffic exists. Brown v. Maryland, 25 U.S. 419, 12 Wheat. 419, 6 L.Ed. 678; Leisy v. Hardin, 135 U.S. 100 (10 S.Ct. 681, 34 L.Ed. 128); In re Rahrer, 140 U.S. 545 (11 S.Ct. 865, 35 L.Ed. 572); Bowman v. Railway Co., 125 U.S. 465 (8 S.Ct. 689, 31 L.Ed. 700). That cigarettes are a recognized commercial commodity must be conceded, and it follows that, in so far as the law in question amounts to a regulation of commerce, it is unconstitutional and void. There must of necessity be a time, however, when an article which is the subject of interstate commerce becomes subject to the taxing power and police regulations of the state; a time when the article loses its character as an import, and its owner becomes subject to local regulations. In the case of Brown v. Maryland it is said that the point of time when the prohibition ceases, and the power of the state to tax commences, is not the instant when the article enters the country, but when the importer has so acted upon it that it has become incorporated and mixed up with the mass of property in the country, which happens when the original package is no longer such in his hands; that the distinction is obvious between a tax which intercepts the import as an import on its way to become incorporated with the general mass of property, and a tax which finds the article already incorporated with that mass by the act of the importer; and that the right to sell any imported article is an inseparable incident to the right to import it. In another case (Bowman v. Railway Co., supra), it is said in the dissenting opinion that while the question involved did not require a decision, yet the argument of the majority conducts to the conclusion that the right of transportation included by necessary implication the right of the consignee to sell in unbroken packages at the place where the transportation terminated. This language was subsequently approved by a majority of the court in the case of Leisy v. Hardin. Again, in the License Cases, 5 HOW 504, Chief Justice Taney said: "These state laws act altogether upon the retail or domestic traffic within their respective borders. They act upon the article after it has passed the line of foreign commerce, and become a part of the general mass of property in the state." Chief Justice Waite declared in the Bowman Case that "it is only after the importation is completed, and the property incorporated is mingled with and becomes a part of the general property of the state, that its regulations can act upon it, except in so far as it may be necessary to insure safety in the disposition of the import until thus mingled." In the case of Leisy v. Hardin the beer was held for sale in the original barrels and cases in which it was imported, and none of it was broken or opened upon the premises. Chief Justice Fuller said, referring to these facts, that the brewers who brewed and owned the beer had the right to import it into this state, and also had the right to sell it, by which act alone it would become mingled in the common mass of property within the state, and that up to that time the state...