State of West Virginia v. Adams Exp. Co.

Decision Date13 January 1915
Docket Number1325.
Citation219 F. 794
PartiesSTATE OF WEST VIRGINIA v. ADAMS EXPRESS CO.
CourtU.S. Court of Appeals — Fourth Circuit

Fred O Blue, of Charleston, W. Va., and Wayne B. Wheeler, of Columbus, Ohio, for appellant.

George E. Price, of Charleston, W. Va., and Joseph S. Graydon, of Cincinnati, Ohio (Lawrence Maxwell, of Cincinnati, Ohio, on the brief), for appellee.

Before KNAPP and WOODS, Circuit Judges, and WADDILL, District Judge.

WOODS Circuit Judge.

The state of West Virginia brought this suit in the circuit court of Kanawha county against the Adams Express Company, R. H Clendenin, and Edward Beigel, alleging: That Beigel, a resident of Cincinnati, Ohio, sent through the mails to many persons in West Virginia circular letters soliciting the purchase of intoxicating liquors, contrary to the law of the state; that Clendenin, induced by the solicitation, ordered from Beigel one-fourth of a barrel of beer which was carried by the Adams Express Company from Cincinnati to Charleston W. Va., and was there held by the carrier ready for delivery when the bill was filed; and that Beigel intends to continue to ship into West Virginia by the defendant express company beer on orders so solicited. The breach of duty to the state alleged against the express company was its failure to use due diligence to ascertain before carrying the beer whether the contract for its sale was made in pursuance of an illegal scheme of solicitation, and that by delivering the beer, as it intended, it would aid Beigel in his unlawful attempt to make sales in West Virginia, inasmuch as the statute makes the place of delivery the place of sale. Beigel was not served. The relief asked, with which we are now concerned, is that the state--

'be awarded an injunction against the said defendant, the Adams Express Company, restraining it, its agents, employes, and representatives, from delivering to the defendant R. H. Clendenin the consignment aforesaid of one-fourth barrel of draught beer; and that defendant the Adams Express Company, its agents, employes, and representatives, be enjoined from delivering to the defendant, or to any other person, any shipment of liquors manufactured by the Pabst Brewing Company and handled by said defendant Beigel, or any of his agents, representatives, or employes at any place where said defendant express company operates in the state of West Virginia, within the jurisdiction of the court, unless the consignee of any such liquors can show to the satisfaction of the defendant express company, its agents, representatives, and employes, that he without solicitation from said Beigel. or any of his agents, representatives, or employes, ordered the consignment of liquors for his own personal lawful use without having received from said Beigel, or any of his agents, representatives, or employes, advertisements or letters soliciting orders for liquors, or price lists or order blanks advertising or soliciting from the consignee orders for liquors.'

A preliminary order of injunction was made by the state court, but upon removal of the cause to the District Court for the Southern District the District Judge, on motion of the Adams Express Company, dissolved the injunction and dismissed the bill, holding that the state law could not prevent solicitation through the United States mails for the sale of liquor, and that there is nothing in the Wilson Act or the Webb-Kenyon Act which authorizes the state to interfere with the shipment and delivery of liquors ordered by a citizen of West Virginia for his own personal use from a licensed dealer without the state.

The appeal requires a consideration of the scope and effect of the West Virginia constitutional and statute law and the effect upon it of the act of Congress of March 1, 1913, known as the Webb-Kenyon Act.

1. In trying to comprehend the legislative purpose in prohibition statutes it is important to remember that the ultimate end sought in prohibition legislation is not the prevention or restriction of the mere sale of intoxicants, but the prevention of their consumption as a beverage. The sale being the most usual and obvious means by which drinking is accomplished, legislation is more often directed against the sale. But it is upon the recognized evil of individual consumption as a beverage that the right of a state under its police power rests to enact prohibitive legislation; and in the exercise of that right it cannot be denied that the state may legislate not only against acts which would constitute a sale at common law, but against other acts within its borders, such as deliveries by common carriers, which tend to defeat or weaken its public policy of preventing the consumption of liquor as a beverage.

We are not concerned in this case with the question whether the state Legislature or the state Legislature and the Congress in conjunction can forbid a citizen to drink intoxicating liquors or purchase them in another state and bring them into the state of West Virginia for his own consumption; but with the very different question whether the state may forbid the sale of liquor in its borders and make the delivery by a carrier a sale at the place of delivery; and whether the Congress can prohibit the transportation in the state by the common carrier of liquor so to be delivered contrary to the law of the state. We think it can be demonstrated that this question must be answered in the affirmative-- that it can be made perfectly manifest that shipments into the state and deliveries by common carriers, by which liquor dealers outside of prohibition states were enabled to thwart the efforts of state governments to save the people of the state from the liquor evil, have been forbidden by state legislation made valid by the withdrawal of the protection of interstate commerce from such shipments under the act of Congress known as the Webb-Kenyon Act.

The amendment to the Constitution of the state of West Virginia, known as article 6, Sec. 46, ratified in November, 1912, prohibits 'the manufacture and sale and keeping for sale' of intoxicating liquors, with exceptions not material here; and it provides that:

'The Legislature shall, without delay, enact such laws, with regulations, conditions, securities and penalties as may be necessary to carry into effect the provisions of this section.'

On February 11, 1913, the Legislature enacted a statute to take effect July 1, 1914, which in section three contained this provision:

'Except as hereinafter provided, if any person acting for himself, or by, for or through another shall manufacture or sell or keep, store, offer or expose for sale; or solicit or receive orders for any liquors or absinthe or any drink compounded with absinthe, he shall be deemed guilty of a misdemeanor * * *; and any person, except a common carrier, who shall act as the agent or employe of such manufacturer or such seller, or person so keeping, storing, offering or exposing for sale said liquors, or act as the agent or employe of the purchaser of such liquors, shall be deemed guilty of such manufacturing or selling, keeping, storing, offering or exposing for sale, as the case may be; and in case of a sale in which a shipment or delivery of such liquors is made by a common or other carrier, the sale thereof is made by deemed to be made in the county wherein the delivery thereof is made by such carrier to the consignee, his agent or employe. ' Laws 1913, c. 13 (Code 1913, c. 32a, Sec. 3 (sec. 1282)).

2. At the argument it seemed to be conceded that state legislation would be effective to make the place of delivery the place of sale, with respect to transactions within the scope of the state legislative power. The power of the state to enact laws regulating and controlling commercial transactions within its own limits, subject only to the condition that the regulations shall not arbitrarily impair property rights or interfere with interstate commerce, has been affirmed in Sinnot v. Davenport, 63 U.S. (22 How.) 227, 16 L.Ed. 243, Delamater v. South Dakota, 205 U.S. 93, 27 Sup.Ct. 447, 51 L.Ed. 724, 10 Ann.Cas. 733, and innumerable other federal and state decisions.

'The internal commerce of a state-- that is, the commerce that is wholly confined within its limits-- is as much under its control as foreign or interstate commerce is under the control of the federal government. ' Sands v. Manistee River Improvement Co., 123 U.S. 288, 8 Sup.Ct. 113, 31 L.Ed. 149; Hart v. State, 87 Miss. 171, 39 So. 523, 112 Am.St.Rep. 437.

This power includes the regulation of sales and the change of the general rule of the common law, that delivery to the carrier is a completion of the sale, into a general statutory rule as to every sale that it shall not be complete until delivery to the consignee, or into a special statutory rule that the sale of intoxicating liquors shall not be complete until delivery to the consignee, and that the place of delivery shall be the place of sale. The validity of such a special statutory regulation is illustrated in State v. Herring, 145 N.C. 418, 58 S.E. 1007, 122 Am.St.Rep. 461, and State v. Patterson, 134 N.C. 612, 47 S.E. 808.

3. There is nothing in the amendment of the state Constitution that takes away by implication this power of the Legislature to provide that the place of delivery shall be the place of sale. It is true that the constitutional amendment prohibits 'the manufacture, sale and keeping for sale ' of liquors. But it does not indicate a purpose to deprive the Legislature of the power to determine what shall be considered the place of sale. Even if it be assumed that the framers of the amendment, in prohibiting the sale of liquors had in view the general common-law rule that the sale was to be considered...

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    ...476, 119 P. 644; Bird v. State (Tenn.), 175 S.W. 554; Ex parte Brown, 38 Tex. Cr. 295, 70 Am. St. 743, 42 S.W. 554; State of West Virginia v. Adams Express Co., 219 F. 794.) title specifically limits the keeping or possession of liquor to the keeping for sale. The body of the act is broader......
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