State v. Hanaphy

• Decision Date: 15 May 1902
• Citation: 90 N.W. 601,117 Iowa 15
• Parties: THE STATE OF IOWA v. PAT HANAPHY, Appellant
• Court: Iowa Supreme Court

90 N.W. 601

117 Iowa 15

THE STATE OF IOWA v. PAT HANAPHY, Appellant

Supreme Court of Iowa, Des Moines

May 15, 1902

Appeal from Jefferson District Court.--HON. F. W. EICHELBERGER Judge.

APPEAL by defendant from a judgment of conviction upon charge of violating the provisions of section 2382 of the Code. The facts are stated in the opinion.

Reversed.

D. J O'Connell for appellant.

Chas W. Mullan, Attorney-General; Chas. A. Van Vleck, Assistant Attorney-General; Arthur G. Jordan, County Attorney, and Raney & Simmons for the state.

C. S. Elgutter, Finley Burke and C. B. Aitchison filed a brief as amici curiae.

OPINION

WEAVER, J.

The prosecution in this case was instituted before a justice of the peace upon an information in the following form: "The defendant is accused of the crime of soliciting, taking and accepting an order for the purchase, sale and shipment of intoxicating liquor, for that the defendant, on the day of March, 1901, at the township of Fairfield, in the county of Jefferson and the state aforesaid, did solicit, take, and accept an order for the purchase, sale, and shipment of intoxicating liquor; contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Iowa." And the defendant being convicted by the magistrate, an appeal was taken to the district court. The trial in the district court was had upon an agreed statement of facts in the following words: "Now, in this cause come the parties, the defendant appearing in person and by attorney, and in open court agree upon the following as a statement of the facts upon which said cause shall be submitted to the court: That defendant is a resident of Des Moines county, Iowa; that he is the traveling salesman of the Dallas Transportation Company, liquor dealers, a corporation organized under the laws of the state of Illinois, and whose principal place of business is at Dallas City, Illinois, said corporation being a citizen of the state of Illinois. That the business of said defendant is to travel for the said Dallas Transportation Company to solicit and take orders for the purchase, sale, shipment, and delivery of intoxicating liquors. That as such representative, on or about the day of March, 1901, the said defendant, in the city of Fairfield, Jefferson county, and state of Iowa did solicit, take, and accept from one Robert Corr an order for certain intoxicating liquors, to wit, one gallon of alcohol, said order being by him taken as the representative of the Dallas Transportation Company, and which order was filled by the shipment of said liquor by express to Fairfield, Iowa from Dallas City, Illinois, the same being consigned to the said Robert Corr and shipped C. O. D. It is agreed that at the time said order was solicited the liquor in question was in the state of Illinois. It is further agreed that all the orders taken by the defendant are sent to his principal in Dallas City, Illinois, subject to the approval or disapproval of said principal. And it is agreed by the defendant that he waives a jury, and submits his cause to the court, and authorizes the court to find a verdict of guilty or not guilty, as he may determine upon the foregoing statement of facts and the law applicable thereto." Upon this evidence the defendant was again convicted, and fine and costs adjudged against him and from such judgment he appeals to this court.

The section of the statute upon which the charge against defendant is founded reads as follows: "Sec. 2382. No one, by himself, clerk, servant, employe or agent, shall, for himself, or any person else, directly or indirectly, or upon any pretense, or by any device, manufacture, sell, exchange barter, dispense, give in consideration of the purchase of any property or any services or in evasion of the statute, or keep for sale, any intoxicating liquor, which term shall be construed to mean alcohol, ale, wine, beer, spirituous, vinous and malt liquor, and all intoxicating liquor whatever, except as provided in this chapter, or solicit, take or accept any order for the purchase, sale shipment, or delivery and distribution of any such liquor, or aid in the delivery and distribution of any intoxicating liquor so ordered or shipped, or own, keep or be in any way concerned, engaged or employed in owning or keeping any intoxicating liquor with intent to violate any provision of this chapter, or authorize or permit the same to be done; and any servant, employe or agent engaged or aiding in any violation of this chapter shall be charged and convicted as principal; provided, that nothing herein shall prohibit traveling salesmen soliciting orders for the purchase, sale and shipment of intoxicating liquors, from persons legally authorized to sell or dispense the same." Code, section 2382, as amended by Acts Twenty-eighth General Assembly, chapter 74. That defendant did "solicit, take and accept an order for the purchase, shipment, and delivery of intoxicating liquor" is conceded of record, and the one question raised by the appeal is whether such transaction comes within the definition of interstate commerce, and is therefore exempt from punishment as an infraction of the law of the state. This involves an interpretation and application of section 8, article 1, of the Constitution of the United States. Upon this, as all other federal questions, we have to look to the supreme court of the United States for controlling precedents, if any exist; and such examination makes it reasonably clear that the proposition contended for by the appellant must be considered as res adjudicata. In the first instance, it is well settled that the business of "drumming" or soliciting orders for goods to be shipped from one state to another is a legitimate feature of interstate commerce, and cannot be hampered or restricted by license tax or other restrictions imposed by a state or minor municipality. Robbins v. Taxing District, 120 U.S. 489 (7 S.Ct. 592, 30 L.Ed. 694); Vance v. W. A. Vandercook Co., 170 U.S. 438 (18 S.Ct. 674, 42 L.Ed. 1100); Asher v. Texas, 128 U.S. 129 (9 S.Ct. 1, 32 L.Ed. 368). Under these and other like holdings the right of the defendant to take the order in controversy for a shipment from another state is beyond the power of this state to prohibit or punish, unless we find ourselves able to hold that the character of the shipment brings it within the category of acts which the state may prohibit by an exercise of its inherent police power without violation of the constitutional provision referred to. Were we at liberty to follow the reasoning which seems to us satisfactory, we should be disposed to hold the police power of the state sufficient for that purpose, and such conclusion would find very substantial support in the adjudications. See Mugler v. Kansas, 123 U.S. 623 (8 S.Ct. 273, 31 L.Ed. 205); Boston Beer Company v. Massachusetts 97 U.S. 25 (24 L.Ed. 989); Sherlock v. Alling, 93 U.S. 99 (23 L.Ed. 819),--to say nothing of the...