State v. Fulker

• Decision Date: 01 January 1890
• Citation: 43 Kan. 237,22 P. 1020
• Parties: THE STATE OF KANSAS v. F. W. FULKER
• Court: Kansas Supreme Court

22 P. 1020

43 Kan. 237

THE STATE OF KANSAS v. F. W. FULKER

Supreme Court of Kansas

January 1, 1890

Appeal from Marshall District Court.

PROSECUTION for a violation of the prohibitory liquor law. Conviction and sentence at the May term, 1889. The defendant Fulker appeals. The material facts are stated in the opinion, filed on January 11, 1890.

Judgment affirmed.

A. L Williams, and D. C. Lockwood, for appellant.

L. B Kellogg, attorney general, for The State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

F. W. Fulker was prosecuted in the district court of Marshall county upon an indictment charging him with unlawfully selling intoxicating liquors at the town of Oketo, in Marshall county. The jury returned a verdict finding him guilty on five counts of the indictment, and on his motion to set aside the verdict the conviction was sustained as to the first two counts, and set aside as to the other three. The judgment of the court was that he should pay a fine of $ 100 and be imprisoned in the jail of Marshall county for thirty days on the first count, and a like sentence for the conviction under the second count was pronounced. The defendant appeals, and alleges that the court erred in overruling his motion for a new trial.

The testimony offered on the trial showed that the defendant sold to numerous persons what were called "prize packages," being boxes about twelve inches square, in each of which there was a jug of whisky. These boxes were shipped from Nebraska, and were sold in Kansas by the defendant in the same form and condition in which they were shipped. The defendant was in charge of the railroad depot and express office at Oketo, and the boxes were shipped by express from Blue Springs, Nebraska. Part of them, at least, were consigned by "M. L. R." to "M. L. Rawling," but who "M. L. R." was is not very clearly shown. Some of those who applied to purchase liquor from the defendant presented orders, which purported to come from Rawling and from a man called "Ax;" but the testimony indicates that the defendant sold to all who applied, regardless of orders, and that many sales were made when no such orders were presented.

At the close of the testimony the defendant asked the court to instruct the jury that, if packages containing intoxicating liquors were sold by the defendant in the original packages as delivered for shipment in Nebraska, and as received by him in Kansas, such sales were not in violation of the constitution and laws of Kansas relating to the sale of intoxicating liquors. The request was refused, and in charging the jury the court said:

"I further instruct you that if you believe from the evidence, beyond a reasonable doubt, the defendant knowingly sold intoxicating liquors at the place described in the complaint, and within two years prior to the 22d day of December, 1888, it would be no defense against such sales for the defendant to show by evidence that such intoxicating liquor so sold by him had been imported from another state over some route ordinarily used for the transportation of merchandise, in inclosed boxes, or packages, and that such intoxicating liquors had been so sold by the defendant in the original boxes or packages in which they had been placed for shipment in another state, without breaking said boxes or packages."

The refusal of the first-mentioned instruction, and the giving of the second, present the only question discussed upon the appeal. It is urged that intoxicating liquors transported from another state to Kansas may be sold by the importer, or person to whom they are shipped, in the original packages, free from state control, and that, so far as our constitution and laws would restrict or prohibit such sale, they violate the provision of the federal constitution which declares, "That congress shall regulate commerce among the several states." Counsel for appellant argue with great ability that in interpreting the commercial clause of the constitution intoxicating liquors must be regarded as articles of commerce which may be imported from another state, and sold at the end of the transit in this state the same as other commodities; and that the restriction of our laws upon the sale of liquors upon reaching Kansas is a direct burden on interstate commerce, and a usurpation by the state of a power exclusively vested in congress. We cannot assent to this proposition. That the power to regulate interstate commerce belongs exclusively to congress, and that the laws of a state which would encroach upon that power or directly interfere with such commerce cannot stand, all concede. Nothing in the constitution or statutes of Kansas evinces any purpose on the part of the people of the state to trench upon this power, or antagonize the freest commercial intercourse with other states. It is not necessary to review at length the statutory provisions relating to the manufacture and sale of intoxicating liquors within the state. It is enough to say that they do not purport to restrict in any manner the transportation of liquors into or through the state. Such property may be carried over the state without burden or restraint, the same as any other commodity; and there is like freedom in bringing it in. When liquors are brought from another state, they are subject to no other or different regulation than like property produced in Kansas. Our law is enforced with perfect equality, without any discrimination between citizens of this and other states, or between liquor brought in and that already here. The validity of our statute has been repeatedly sustained by this court, and all question of the right of the state to enact such legislation has been set at rest by the decisions of the supreme court of the United States in Foster v. Kansas, 112 U.S. 201, and Mugler v. Kansas, 123 id. 623. In the latter case it was held, after a most elaborate and learned treatment of the questions involved, that our laws were not repugnant to the federal constitution, and it was said that, "It is difficult to perceive any ground for the judiciary to declare that the prohibition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors for general use there as a beverage, is not fairly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent spirits."

It is argued that the unrestricted sale of liquors in the form in which they are shipped from another state is an essential element of traffic, and that as the law of Kansas forbids such a sale, it constitutes a direct burden on interstate commerce. It must be remembered that our law does not absolutely forbid the use or sale of intoxicating liquors. They may not only be freely introduced and stored, but they may be sold for medical, scientific and mechanical purposes. A person may purchase and bring liquor into the state for his own use without violating the statute; and one so lawfully obtaining possession of intoxicating liquor may use it as he sees fit, by drinking it himself or giving it to another, provided it is done in good faith, and not as a shift or device to evade the provisions of the prohibitory act. (The State v. Standish, 37 Kan. 643.) So it appears that the law does not absolutely prohibit the importer from using or selling liquors, but it only requires that the sales shall be made for beneficial and proper purposes, and by duly-authorized persons. It does not operate directly on commerce, or upon the introduction of liquors, but only provides that they shall be subject to a reasonable police regulation when brought within the territorial limits of the state. The fact that such regulations may to some extent diminish the traffic or incidentally affect interstate commerce does not render them invalid.

"In conferring upon congress the regulation of commerce, it was never intended to cut the states off from legislating on all subjects relating to health, life and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation in a great variety of ways may affect commerce and persons engaged in it without constituting a regulation of it, within the meaning of the constitution." (Sherlock v. Alling, 93 U.S. 99.)

See also Wilson v. Blackbird Creek, 2 Pet. 245; Gilman v. Philadelphia, 70 U.S. 713, 3 Wall. 713; Cooley v. Board of Wardens, 53 U.S. 299, 12 HOW 299; Osborne v. Mobile, 83 U.S. 479; Munn v. Illinois, 94 id. 113; Hall v. De Cuir, 95 id. 485; Pound v. Turck, 95 id. 459; Transportation Co. v. Wheeling, 99 id. 273; Ferry Co. v. East St. Louis, 107 id. 365; Morgan v. Louisiana, 118 id. 455.

The regulation and control of the liquor traffic is purely an exercise of the police power of the state, and between it and the commercial power conferred on the general government there is no antagonism. The commercial power is delegated to congress, and cannot be limited by the states, but the police power is reserved to and remains alone with the state. These powers are to be exercised by the different departments of government, for the public good, and both are to be construed relatively, and considered with reference to each other. The power to provide for the preservation of the morals, the health, the safety and lives of the people, was never surrendered by the states, and it is a power which can be most advantageously exercised by local regulation. It is not denied that the unrestrained use of intoxicating liquor destroys the health, contaminates public morals, and produces disorder and crime. The supreme court of the United States sufficiently shows the necessity of police regulation of the traffic, in the Mugler case, where it is said that it could not "shut out of view...