State v. J. W. Kelly & Co.

• Decision Date: 19 November 1910
• Citation: 133 S.W. 1011
• Parties: STATE v. J. W. KELLY & CO.
• Court: Tennessee Supreme Court

Page 1011

133 S.W. 1011

STATE v. J. W. KELLY & CO.

Supreme Court of Tennessee.

November 19, 1910.

On Petition to Rehear, January 11, 1911.

Appeal from Criminal Court, Hamilton County; S. D. McReynolds, Judge.

An indictment against J. W. Kelly & Co. was quashed, and the State appeals. Affirmed.

Attorney General Cates, for the State. Williams & Lancaster, Spears & Lynch, and Lewis M. Coleman, for defendant.

NEIL, J.

In the criminal court of Hamilton county, on the 10th day of February, 1910, an indictment was found against the defendant, containing the following averments:

"That J. W. Kelly & Company, a corporation, heretofore, on the 10th day of January, 1910, in the county aforesaid, did unlawfully sell as a beverage, spirituous, vinous, malt, alcoholic, and intoxicating liquor within four miles of a schoolhouse where a school was kept.

"Said sale was made under the following circumstances and conditions, to wit:

"On said date the said J. W. Kelly &amp Company delivered to the Central of Georgia Railway Company, a common carrier of freight, a package containing five gallons of whisky for shipment to one M. F. Frame in the state of New York, the said M. F. Frame having previously ordered said whisky and having sent the purchase price thereof to the said J. W. Kelly & Company through the United States mail from the state of New York, against the peace and dignity of the state."

A motion to quash was entered, containing four grounds; but, in the view we take of the case, we need consider only the last, which reads as follows:

"Because said indictment shows on its face that the sale complained of was made by J. W. Kelly & Company, in Hamilton county, Tennessee, to M. F. Frame, in the state of New York, pursuant to an order sent from said Frame, in the state of New York, to the defendant, J. W. Kelly & Company, in the state of Tennessee; hence said sale is strictly interstate commerce. And if said act hereinbefore set out should be so construed as to prohibit said interstate sale, then it is void, because in conflict with article 1, § 8, cl. 3, of the Constitution of the United States, which provides:

"`Congress shall have power * * * to regulate commerce with foreign nations, and among the several states, and among the Indian tribes.'"

The case came on for trial on the motion on the 23d day of July, before the Honorable S. D. McReynolds, judge, etc., whereupon he sustained the motion and quashed the indictment. From this judgment the state appealed to this court, and has here assigned errors.

The prosecution is based on chapter 1, Acts 1909, the first section of which reads as follows:

"That it shall not hereafter be lawful for any person to sell or tipple any intoxicating liquors, including wine, ale, and beer, as a beverage, within four miles of any schoolhouse, public or private, where a school is kept, whether the school be then in session or not, in this state, and that any one violating the provisions of this act shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine for each offense of not less than fifty dollars nor more than five hundred dollars and imprisonment for a period of not less than thirty days nor more than six months."

The general rule in this state, with regard to the sale of personal property, is that it is complete and the title passes as soon as the parties have agreed upon the terms, and that delivery is not essential to the passing of title. Shaw v. Smith, 9 Yerg. 97; Potter v. Coward, Meigs, 22; Miller v. Koger, 9 Humph. 231, 236; Shaddon v. Knott, 2 Swan, 358, 361-364, 58 Am. Dec. 63; Broyles v. Lowrey, 2 Sneed, 23; Fitzpatrick v. Fain, 3 Cold. 15, 19; Bond v. Greenwald, 4 Heisk. 460, 463; Railroad v. Ford, 11 Heisk. 388, 390; Spurlock v. Gill, 3 Tenn. Cas. 43, 45; Mayberry v. Mill Co., 112 Tenn. 568, 85 S. W. 401; Hardwick v. Can Co., 113 Tenn. 676, 88 S. W. 797. Of course, delivery may be made an express condition, and, under such a contract, the title does not pass until the delivery is made. Barker v. Reagan, 4 Heisk. 590; Barker v. Freeland, 91 Tenn. 112, 117, 18 S. W. 60. So, prepayment of the purchase price may be made a condition with like effect. Harding v. Metz, 1 Tenn. Ch. 610. Likewise, when the goods are to be weighed or measured in order to separate them from a mass of similar kind, or to ascertain the quantity of goods, or amount due for them, the title does not pass until this is done. Williams v. Allen, 10 Humph. 337, 51 Am. Dec. 709; Williams v. Adams, 3 Sneed, 359, 363, 364; Bush v. Barfield, 1 Cold. 93, 95; Fitzpatrick v. Fain, supra; Bond v. Greenwald, supra; Rawls & Griffis v. Patterson, 1 Baxt. 372; Goodrich v. Edmundson, 1 Tenn. Cas. 584; Mayberry v. Mill Co., supra. But when the goods are ordered through the mail, it is necessary that the assent of the person from whom the order is made shall be communicated to the person making the order (1 Page on Contracts, §§ 41, 43, 44) before the contract is complete. This may be done directly (Trounstine v. Sellers, 35 Kan. 447, 11 Pac. 441; McCormick Harvesting Machine Co. v. Markert, 107 Iowa, 340, 78 N. W. 33; Main v. Tracey, 86 Ark. 27, 109 S. W. 1015), or it may be accomplished by filling the order and delivering the goods to a common carrier to be transported to the person making the order. It is held in this class of cases that the title passes upon the delivery of the goods to the carrier; the carrier, in such case, being treated as the agent of the person making the order. Boyd v. Mosely, 2 Swan, 661; Mississippi Mills v. Bank, 9 Lea, 314, 317; Brooks v. Paper Co., 94 Tenn. 701, 710, 31 S. W. 160; Charles v. Carter, 96 Tenn. 607, 36 S. W. 396; Katzenberger v. Leedom & Co., 103 Tenn. 150, 52 S. W. 35. This rule is a general one. The Mary & Susan, 1 Wheat, 25, 4 L. Ed. 27; The Frances, 9 Cranch, 183, 3 L. Ed. 698; Hatch v. Standard Oil Co., 100 U. S. 124, 25 L. Ed. 554; Kelsea v. Ramsey & Gore Mfg. Co., 55 N. J. Law, 320, 26 Atl. 907, 22 L. R. A. 415, and note; State v. Rosenberger, 212 Mo. 648. 111 S. W. 509, 20 L. R. A. (N. S.) 284, 126 Am. St. Rep. 580. In fact, delivery to the vendee or his agent is necessary to effect a transfer of title under a contract of sale which contemplates the sending of the property by the vendor to the vendee. The Venus, 8 Cranch, 253, 275, 3 L. Ed. 553.

So, in the case stated in the indictment, the sale became complete when the goods were delivered to the Central of Georgia Railway Company, a common carrier of freight, for shipment to M. F. Frame, in the state of New York. The carrier was then charged with the transportation of the goods. Bennett v. American Express Co., 83 Me. 236, 22 Atl. 159, 13 L. R. A. 33, 23 Am. St. Rep. 774, and note. When a commodity has been delivered to a common carrier to be transported on a continuous voyage or trip to a point beyond the limits of the state where delivered, the character of interstate or foreign commerce attaches. Coe v. Errol, 116 U. S. 517, 6 Sup. Ct. 475, 29 L. Ed. 715; General Oil Co. v. Crain, 209 U. S. 229, 28 Sup. Ct. 475, 52 L. Ed. 754; The Daniel Ball v. United States, 10 Wall. 557, 566, 19 L. Ed. 999; Ex parte Koehler (C. C.) 30 Fed. 867, 869; In re Greene (C. C.) 52 Fed. 113; Houston Direct Navigation Co. v. Insurance Co. of North America, 89 Tex. 1, 32 S. W. 889, 30 L. R. A. 713, 59 Am. St. Rep. 17. And compare Adams Express Co. v. Kentucky, 206 U. S. 129, 27 Sup. Ct. 606, 51 L. Ed. 987; Vance v. Vandercook, 170 U. S. 438, 444, 18 Sup. Ct. 674, 42 L. Ed. 1100; Heymann v. Southern Ry. Co., 203 U. S. 273, 27 Sup. Ct. 104, 51 L. Ed. 178.

It thus appears that the act by which the acceptance on the part of J. W. Kelly & Co. of the offer made by M. F. Frame was manifested, and which closed the contract, placed the goods — that is, the five gallons of whisky —the subject of the contract, under the protection of the interstate commerce clause of the federal Constitution, since, upon the reception of the goods by the railway company for the purpose of transportation to the foreign state, the initial step in that transportation was begun. To hold that the defendants became liable to criminal prosecution for so acting would be equivalent to holding that, although the act performed by them was of a kind sanctioned by the federal Constitution, yet they were not personally entitled to protection thereunder, and this would be of itself a violation by the court of that Constitution.

It is true, as insisted by the state, that it has the right to prohibit the sale of intoxicating liquors within its borders. Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346; Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Foster v. Kansas, 112 U. S. 205, 5 Sup. Ct. 8, 97, 28 L. Ed. 629; Schmidt v. Cobb, 119 U. S. 286, 7 Sup. Ct. 1373, 30 L. Ed. 321; note to Rothermel v. Meyerle, 9 L. R. A. 366, and cases cited; Woollen & Thornton on the Law of Intoxicating Liquors, §§ 92 to 116, and authorities cited. The right exists under the police power, and the Supreme Court of the United States has said that the independence of the police power and of the commercial power and the delimitation between them must always be recognized and observed. United States v. E. C. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325. It is also said, however, that when the state police power and the national commercial power come into conflict, the former must yield. Arkansas v. Kansas & T. Coal Co., 183 U. S. 185, 189, 22 Sup. Ct. 47, 46 L. Ed. 144. This has been frequently shown in the decisions of that court. Lyng v. Michigan, 135 U. S. 161, 10 Sup. Ct. 725, 34 L. Ed. 150; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; Schollenberger v. Pennsylvania, 171 U. S. 18, 18 Sup. Ct. 757, 43 L. Ed. 49. The United States has recognized intoxicating liquors as proper subject of commerce. Wilkerson v. Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572...