State v. Kirmeyer

• Decision Date: 11 January 1913
• Docket Number: 18,396
• Parties: THE STATE OF KANSAS, Appellant, v. M. KIRMEYER, Appellee
• Court: Kansas Supreme Court

128 P. 1114

88 Kan. 589

THE STATE OF KANSAS, Appellant, v. M. KIRMEYER, Appellee

No. 18,396

Supreme Court of Kansas

January 11, 1913

Decided January, 1913. [Copyrighted Material Omitted]

Appeal from Leavenworth district court.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. BASIC FACTS--Conflicting Conclusions Deduced Therefrom--Error. A finding consisting only of conclusions from basic facts found in detail can not be upheld where it is in conflict with them. The basic facts must prevail over the conclusion.

2. INTOXICATING LIQUORS -- Interstate Commerce -- Question of Fact. Where the commerce clause of the federal constitution is invoked as a protection to traffic in intoxicating liquor, the courts are not precluded from an inquiry into methods and practices to determine whether the transactions involved constitute legitimate interstate commerce, or are colorable merely and intended to evade and defeat the just operation of the constitution and laws of this state.

3. INTOXICATING LIQUORS--"Shifts and Devices"--Crossing State Line. A citizen of this state whose business is prohibited here can not, under the guise of moving his stock in trade across the state line and other shifts or devices to evade the statutes of the state continue the prohibited business here and be immune from the penalties of our law.

John S. Dawson, attorney-general, S. M. Brewster, special assistant attorney-general, Lee Bond, county attorney, and Arthur M. Jackson, of Leavenworth, for the appellant.

A. E. Dempsey, and F. P. Fitzwilliam, both of Leavenworth, for the appellee.

STATEMENT.

This appeal is from a judgment for the defendant in an action prosecuted by the attorney general and county attorney to abate and enjoin a public nuisance. The petition charges a nuisance committed by the defendant in the open and persistent violation of the prohibitory liquor laws. The petition contains the same averments as those held to be sufficient in The State v. Rabinowitz, 85 Kan. 841, 118 P. 1040, and also the following:

Plaintiff further alleges that for several months prior to the institution of this action the said defendant has kept and maintained, and does still keep and maintain, in the city and county of Leavenworth, certain warehouses or storerooms for the purpose of selling and storing intoxicating liquors therein, and for the purpose of storing empty cases, bottles and barrels, and for the purpose of the stabling of wagons loaded with intoxicating liquors, and for the purpose of stabling teams and caring for the same, used in the transportation of intoxicating liquors from said town of Stillings, in the county of Platte, in the state of Missouri, and your petitioners are informed and believe that the said defendant so keeps and maintains said warehouses or storeroom on premises known as No. 117 and No. 117 1/2 Delaware street, in the city of Leavenworth, Kansas."

The prayer is:

That he (the defendant) be enjoined from conducting said unlawful business; that he be enjoined from maintaining, using and employing said wagons, vehicles, conveyances, horses, mules, telephones and any other property in the said unlawful manner herein alleged; that upon the final determination of this action said injunction be made permanent; that said wagons, vehicles, conveyances, horses, mules, telephones and other property used in said unlawful business be declared common nuisances and that the same be abated."

Findings of fact were made too lengthy for insertion here. The material facts found and stated by the district court are as follows: The defendant is a resident of Leavenworth and a dealer in beer, in which business he has been engaged for many years. Before the year 1907 his place of business, warehouse and barn were in the city of Leavenworth. About that date he moved his place of business to Stillings, Mo., one and one-half miles from Leavenworth, where he has ever since kept an office and warehouse, where he receives beer in car load lots. He pays a revenue tax to the federal government, a merchant's tax in Missouri and taxes upon his property located in that state. He has no license to sell liquor in this state. His office in Stillings is connected with the telephone exchange in Leavenworth. He receives orders there by mail and telephones for beer, which, if accepted, he fills by tagging the cases, kegs or casks with the names of the persons giving the orders, and deliveries are then made in the original packages by his own teams and wagons or by delivery-men. About 85 per cent of the orders from persons residing in Leavenworth are by telephone, and his trade in that city amounts to about $ 500 per month. Orders from persons in other places are filled by tagging and hauling the beer to the railroad depot in Leavenworth, and bills of lading are given from that point. There is a freight depot, but no station agent, at Stillings, and no post office. Some beer is received by him at the station in Leavenworth and hauled therefrom by his teams to the Stillings warehouse. The defendant's drivers do not solicit orders or make collections. The defendant makes collections, usually in person, or by collector, and some payments are made by mail. He does a family trade in Leavenworth, selling beer only for private use. When he moved his place of business to Missouri he moved his teams and wagons theretofore used in the business from another place in the city to 117 Delaware street, Leavenworth, and installed telephones there, numbered 313, which he still maintains. Occasionally orders for beer are given over such telephones to No. 117 Delaware street, but are answered by requesting that the place of business at Stillings be called up. Mail orders are also occasionally addressed to the defendant at Leavenworth, but are either taken or sent by him to his place of business at Stillings before being opened. Ever since he became engaged in the business the defendant has carried advertisements in two newspapers in

Leavenworth, reading:

"MICHAEL KIRMEYER Stillings, Missouri.

ROCHESTER BEER Family Trade Especially.

Phones 313."

The telephone numbers were not changed through oversight when he changed his place of business to Missouri. In making deliveries from the Stillings warehouse and at the Leavenworth depot his wagons use the Missouri river bridge and the streets and alleys of the city of Leavenworth. The teams and wagons stand upon these streets while deliveries of beer ordered and tagged as before stated are being made.

The following finding was also made:

"The defendant's residence in the city of Leavenworth, Kansas, and the keeping by him of his teams and wagons used by him in his said business, in said city, is not intended as a subterfuge or a shift or device on his part to circumvent or defeat the prohibitory laws of the state of Kansas. Neither is the fact that mail is occasionally addressed to him at Leavenworth, Kansas, instead of Stillings, Missouri, nor the fact that he maintains telephones at his stables in the city of Leavenworth, Kansas, and advertises in said papers above mentioned, intended by him as a shift, and none of these circumstances actually tend to circumvent or defeat the laws of the state of Kansas."

The testimony of the defendant further shows that he has resided in Leavenworth thirty years, and has been in the liquor business "off and on" since he was old enough. About four or five years before the trial, when receivers in cases pending in this court against several brewing companies came to Leavenworth, he "moved across" to Stillings. Stillings contains one store, a round-house and ten or fifteen residences and eight or ten beer warehouses. Occasionally beer is shipped to the defendant over a railroad, consigned to Leavenworth. This beer is hauled in defendant's wagons from the depot in Leavenworth to his warehouse in Stillings. Deliveries by wagon are only made in Leavenworth. Empties from the Leavenworth trade are all gathered up by the drivers, hauled to and shipped from the Leavenworth depot to a brewery in Kansas City, Mo., without being taken to Stillings. Sometimes empties are kept in the barn at No. 117 Delaware street over night where the wagons and teams are kept for making deliveries.

To further indicate the nature of the defendant's business we quote from his testimony:

"Before I moved across I received my liquors here in Leavenworth. I have been receiving my liquors at Stillings since I moved across. There is a freight depot at Stillings, but no agent there. I am a dealer in a beer known as Rochester beer. It comes from Kansas City, Mo. That is the only beer I handle. Nearly all of it comes to Stillings in carload lots. I handle nothing but beer. The beer comes to me in regular beer cases barrels and kegs. Some of the cars come to me over the Burlington and some over the Chicago Great Western. Some of it comes over the Missouri Pacific. Where it comes over the Missouri Pacific it is unloaded at the freight depot in Leavenworth and I haul it across the river in my own wagons. I do not deliver any from the Missouri Pacific depot in Leavenworth. When I get an order for beer from Oskaloosa Topeka and other points in Kansas I bring the beer over to the freight depots in Leavenworth, Kan., in my own wagons and ship it out from there. I do this because there is no freight agent at Stillings, Mo. Leavenworth is the only place to load it. Ever since I have been doing business at Stillings I have had stables and a warehouse at No 117 and 117 1/2 Delaware street, in Leavenworth, Kan. I keep my horses and wagons there. I have quite a few wagons there. These horses and wagons belong to me. I have both Leavenworth telephones at Stillings, Mo. The numbers of these phones are 54 on the Bell and 101 on...