Shaw v. City of Atlanta

• Decision Date: 10 July 1912
• Docket Number: 4,200,4,201.
• Citation: 75 S.E. 486,11 Ga.App. 391
• Parties: SHAW v. CITY OF ATLANTA (two cases).
• Court: Georgia Court of Appeals

75 S.E. 486

11 Ga.App. 391

SHAW v. CITY OF ATLANTA (two cases).

Nos. 4,200, 4,201.

Court of Appeals of Georgia

July 10, 1912

Syllabus by the Court.

Section 1537 of the Code of Atlanta, which prohibits the keeping for unlawful sale of intoxicating liquors in any of the places described in the section is not invalid as being an attempt to regulate or interfere with interstate commerce. The section has no application to the keeping of intoxicating liquors by a carrier while engaged in interstate commerce.

A citizen of Atlanta, who has ordered intoxicating liquors to be shipped to that city in interstate commerce, cannot be convicted of a violation of section 1537 of the Code of Atlanta until after the contract of carriage is completed by delivery to the person for whom the liquors were intended, or some agent authorized by him to receive the same.

Where intoxicating liquors are brought to Atlanta in interstate commerce, for delivery to a resident of that city, who pays the freight and surrenders the bills of lading, and receives from the carrier an order directed to its agent for the delivery of the liquors, the contract of carriage is ended and the carrier thereafter holds the goods as the agent of the person entitled to receive them; and if such person intends to use the liquors for the purpose of unlawful sale he can be convicted of a violation of section 1537 of the Code of Atlanta, even though he has not taken the liquors from the custody of the carrier.

As a general rule, where an owner of goods delivers them to a common carrier in one state, consigned to his own order in another state, with direction to the carrier to notify a third person in the latter state, delivery to the carrier is delivery to the consignee. In such a case the title remains in the shipper, and the goods are subject to his direction and control until delivery is consummated in the state of destination.

Where a bill of lading issued by a common carrier calls for the delivery of a certain package said to contain whisky, and a package is found in the possession of the carrier corresponding in number and weight to the description in the bill of lading, and having thereon marks indicating that it contains intoxicating liquor, a prima facie case is made out that the package in fact contains such liquor.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Dan Shaw was convicted of violations of an ordinance of the City of Atlanta, and brings error. Affirmed in one case, and reversed in the other.

John A. Boykin, of Atlanta, for plaintiff in error.

Jas. L. Mayson and W. D. Ellis, Jr., both of Atlanta, for defendant in error.

POTTLE J.

Prior to the passage of the act of Congress known as the "Wilson Act," the right of a citizen of one state to import intoxicating liquor from another state and sell it in the original package could not be taken away by the state. Intoxicating liquor being a legitimate subject of commerce, the police power of the state did not become operative until after the original package was broken and the contents had become intermingled with the general mass of property in the state. The right to sell "was an inseparable incident to the right to import." Bowman v. Chicago Ry. Co., 125 U.S. 466, 8 S.Ct. 689, 1062, 31 L.Ed. 700; Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128. The Wilson act provided that intoxicating liquor shipped in interstate commerce from one state to another "should, upon arrival in a state or territory, be subject to the operation and effect of the laws of such state or territory." It was at first thought and was so held by several of the state courts that this language of the act gave the states the right to legislate the moment the shipment arrived at the state line; but the Supreme Court of the United States in several cases distinctly held that a shipment of intoxicating liquors moving in interstate commerce was protected from adverse legislation by the state, under its police power, until delivery to the person entitled to receive it. Vance v. Vandercook Co., 170 U.S. 438, 18 S.Ct. 645, 42 L.Ed. 1100; Rhodes v. Iowa, 170 U.S. 412, 18 S.Ct. 664, 42 L.Ed. 1088; American Express Co. v. Iowa, 196 U.S. 133, 25 S.Ct. 182, 49 L.Ed. 417.

In Heymann v. Southern Ry. Co., 203 U.S. 270, 27 S.Ct. 104, 51 L.Ed. 178, 7 Ann.Cas. 1130, the writ of error was sued out to test the correctness of a decision of the Supreme Court of Georgia, reported in 118 Ga. 616, 45 S.E. 491. The Supreme Court of Georgia held that although the goods had not been delivered to the consignees, and although there was no showing of notice to them from the carrier of the lapse of a reasonable time for the consignees to call for and accept delivery, or even if by the local law such notice was unnecessary, the interstate transportation ended when the goods were placed in the carrier's warehouse, and the carrier was thenceforward liable only as a warehouseman, and the goods ceased to be under the shelter of the interstate commerce clause of the Constitution. This conclusion was based upon the theory that the goods must be considered as having arrived, within the meaning of the Wilson Act (Act Aug. 8, 1890, c. 728, 26 Stat. 313 [U. S. Comp. St. 1901, p. 3177]), when they were warehoused by the carrier. The Supreme Court of the United States reversed the judgment of the Supreme Court of Georgia, and announced its ruling as follows: "As the general principle is that goods moving in interstate commerce cease to be such commerce only after delivery and sale in the original package, and as the settled rule is that the Wilson law was not an abdication of the power of Congress to regulate interstate commerce, since that law simply affects an incident of such commerce by allowing the state power to attach after delivery and before sale, we are not concerned with whether, under the law of any particular state, the liability of a railroad company as carrier ceases and becomes that of a warehouseman on the goods reaching their ultimate destination, before notice and before the expiration of a reasonable time for the consignee to receive the goods from the carrier. For, whatever may be the divergent legal rules in the several states concerning the precise time when the liability of a carrier, as such, in respect to the carriage of goods, ends, they cannot affect the general principle as to when an interstate shipment ceases to be under the protection of the commerce clause of the Constitution, and thereby comes under the control of the state authority." In the course of the opinion the court took occasion to say that it did not hold, and that the court was not called upon to decide, if the goods, after arrival at the point of destination, and after notice and full opportunity to receive them, are "designedly left in the hands of the carrier for an unreasonable time, that such conduct on the part of the consignee might not justify, if affirmatively alleged and proven, the holding that goods so dealt with have come under the operation of the Wilson act, because constructively delivered."

A careful examination of the various decisions of the Supreme Court of the United States upon the subject will conclusively show that the Wilson act did not affect the right of an importer to ship intoxicating liquors in interstate commerce nor the right of the purchaser to receive them, and that the only effect of the Wilson act was to permit the state to which the goods were consigned to legislate under its police power upon the subject after the contract of carriage had ceased and the goods had been delivered to the person entitled to receive them. Some of the state courts have held that interstate commerce does not cease and transportation is not ended until the goods are actually delivered at the home of the person entitled to receive them in the state to which they are shipped. The Supreme Court of Maine announced this rule as being applicable in a case where a C. O. D. shipment was made by express, directed to the consignee, at his residence. In Oklahoma, however, the same rule was announced in the case of a shipment by freight without any direction to deliver at any particular address. High v. State, 2 Okl. Cr. 161, 101 P. 115, 28 L.R.A. (N. S.) 162; Moreland v. State, 2 Okl. Cr. 237, 101 P. 138; Hudson v. State, 2 Okl. Cr. 176, 101 P. 275. In State v. Eighteen Casks of Beer, 24 Okl. 786, 104 P. 1093, 25 L.R.A. (N. S.) 492, the Supreme Court of Oklahoma held that, where a bill of lading had been surrendered by the consignee and the freight paid, intoxicating liquors were subject to the state law, notwithstanding the liquors were left on the premises of the carrier. It was accordingly ruled that, where it appeared that the consignee intended to sell such liquors contrary to the laws of the state, they were subject to seizure and confiscation under the state law, notwithstanding they had not been taken from the carrier's premises. In State v. Intoxicating Liquors, 102 Me. 206, 66 A. 393, 11 L.R.A. (N. S.) 550, it was held that the interstate commerce transportation was not ended, in the absence of a special contract to the contrary, until the freight was transported to the carrier's warehouse and there removed from the car. In McCord v. State, 2 Okl. Cr. 214, 101 P. 280, the accused was convicted of unlawfully having in his possession certain intoxicating liquors with...