State v. The Missouri Pacific Railway Company

• Decision Date: 06 November 1915
• Docket Number: 19,984
• Citation: 152 P. 777,96 Kan. 609
• Parties: THE STATE OF KANSAS, Appellee and Appellant, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant and Appellee
• Court: Kansas Supreme Court

152 P. 777

96 Kan. 609

THE STATE OF KANSAS, Appellee and Appellant, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant and Appellee

No. 19,984

Supreme Court of Kansas

November 6, 1915

Decided July, 1915.

Appeal from Cherokee district court; EDWARD E. SAPP, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INTOXICATING LIQUORS--The "Webb-Kenyon Act"--Constitutional. The Webb-Kenyon act (Part 1, 37 U.S. Stat. at Large, ch. 90, p. 699), removing the interstate character and protection from intoxicating liquor shipped into a state for the purpose of use in violation of its laws, is a valid exercise of the commerce power vested in congress by the constitution.

2. SAME. In passing a bill by the senate upon reconsideration after a veto it is not essential that two-thirds of all the senators vote therefor but it is sufficient if two-thirds of a quorum support such bill.

3. SAME. The act in question is not void as a delegation of power over interstate commerce but is a legitimate exercise of such power.

4. SAME. The constitution was not framed and adopted for the special protection of those who violate statutes but for the good of the entire citizenship, and is to be construed with due regard for inevitable changes in social conditions and the advancement made in respect to the health, morals and welfare of the people.

5. SAME. The spirit of the constitution does not oppose but favors congressional action which makes for the promotion of obedience to the laws of the several states.

6. SAME -- "Mahin Act" -- Constitutional and Valid. The Mahin act (Laws 1913, ch. 248) is not void as an attempt to regulate interstate commerce, but, complementary to the Webb-Kenyon act, is a valid enactment concerning the bringing into the state of intoxicating liquor for unlawful use here.

7. SAME. The title of the act is sufficient.

8. SAME--Presumption that Bill was Read by Sections. The senate journal does not affirmatively show that the bill was not read by sections on its final passage and the presumption is that the requirements of section 15 of article 2 of the constitution were observed.

9. SAME--Filing of Statements by Consignee with County Clerk. The requirements concerning statements in writing to be made or taken and filed with the county clerk do not violate the provisions of sections 15 and 20 of the interstate commerce act, as amended.

10. SAME--Delivery of Liquor to Minors--No Application Here. Provisions of the act relating to shipments within the state and the delivery of liquor to minors do not affect this prosecution and can not be invoked for the purpose of building up the defense that the statute is unconstitutional.

11. SAME--Railroad Agent May Refuse Delivery of Liquors. The authority given the agent to refuse delivery of a shipment of intoxicating liquor when intended for unlawful use does not confer upon him judicial power.

12. SAME -- "Mahin Act" Legitimate Subject of Punitive Legislation. Bringing into the state property to be used in violation of its laws is a legitimate subject of punitive legislation akin to that of bringing in stolen property.

13. SAME--Information--Each Count Charged a Public Offense. The information in twelve counts charged the unlawful bringing of intoxicating liquor into the state, in twelve others its unlawful delivery here, and in the twenty-fifth both a bringing in and a delivery. Held, that each count charged an offense and it was error to exclude evidence under any of such counts.

14. SAME--Statements Filed with County Clerk--Pleas of Guilty by Consignee--Competent Evidence. The statements of the shipments made and filed by the carrier with the county clerk were competent evidence, as were also the dockets of a justice of the peace showing pleas of guilty by such consignees to the charges of violating the prohibitory law.

15. SAME--Certified Copies from Internal Revenue Office--Competent Evidence. Certified copies of records in the office of the United States internal revenue collector for this district showing that from July, 1912, to July, 1913, the consignees held receipts for taxes paid as wholesale liquor dealers were competent and their exclusion was error.

16. SAME--Fee of $ 25 to County Attorney on Each Conviction Valid. The county attorney is entitled to have taxed as costs a fee of $ 25 on each count covered by the conviction and the direction to the clerk to omit such fee from the taxation of costs was error.

S. M. Brewster, attorney-general, and F. W. Boss, county attorney, for the plaintiff.

W. P. Waggener, Y. M. Challiss, both of Atchison, and Al F. Williams, of Columbus, for the defendant.

OPINION

WEST, J.

The defendant was prosecuted for violating the Mahin liquor law (Laws 1913, ch. 248).

The information contained twelve counts charging the unlawful bringing into the state of certain intoxicating liquor for the purpose of delivering it to one interested therein who intended to use it in violation of the prohibitory law, the defendant knowing such intention. The next twelve counts charged deliveries of such liquors to such persons for like purpose with like knowledge on the part of the defendant, and the twenty-fifth count charged both such bringing and delivery. The trial court sustained an objection to testimony under counts thirteen to twenty-five, inclusive, from which ruling the state, having reserved a question, appeals. The defendant was convicted on the first twelve counts, and from the judgment thereon appeals and assigns as grounds for reversal numerous reasons, each of which will now be considered.

The title chosen by the legislature is:

"An act regulating the shipment of intoxicating liquor into the state or between points within the state, regulating the delivery of such liquor, providing for the filing of statements with the county clerk showing such shipments and providing for the fees of such county clerk for filing such statements, and prescribing penalties for the violation of the provisions of this act, and repealing all acts and parts of acts in conflict herewith."

It would have been amply sufficient and much more perspicuous to call it "An act relating to the shipment of intoxicating liquor," for this is what the title means and all it means. Hence the contention that section 16 of article 2 of the constitution requiring the subject of an act to be clearly expressed in the title was violated is without merit. (Division of Howard Co., 15 Kan. 194; In re Greer, 58 Kan. 268, 48 P. 950; The State v. Everhardy, 75 Kan. 851, 90 P. 276; The State v. Prather, 84 Kan. 169, 112 P. 829.)

Because the senate journal does not show that the bill was read by sections after amendment in the house, it is argued that the act is void by virtue of section 15 of article 2 of the constitution, requiring that the reading of bills by sections on final passage shall in no case be dispensed with. But as the senate journal does not show that it was not thus read, and is silent on that matter, the presumption is that the constitutional requirement was observed. ( Weyand v. Stover, Treas., 35 Kan. 545, 553, 11 P. 355.)

It is suggested that the act confers judicial power on agents to hear and decide the question of unlawful purpose on the part of the consignee. This is based on the provision of section 4 that if the agent taking the statement of the person to whom the liquor is delivered that it is for his own use knows such statement to be false he may refuse to deliver the liquor. This is simply a practical means by which the agent may prevent liability himself and also hinder the consignee from making a spectacle of him by forcing upon him a statement palpably false. The agent acts as an individual and not as a judicial tribunal in taking the statement, and is not by the section in question clothed with judicial power.

The act prohibits the delivery of liquor by a carrier to a minor, and this is assigned as a ground of invalidity. But as no minor is involved in this transaction the defendant is not affected or harmed by this provision and under the familiar rule can not invoke it as a defense. (The State v. Smiley, 65 Kan. 240, 69 P. 199, and cases cited; The State v. Railway Co., 76 Kan. 467, 490, 92 P. 606.)

It is insisted that the criminality of the carrier can not be based on the unknown intention of the consignee to use the liquor unlawfully. But if the act be otherwise valid, no reason is apparent why the legislature may not punish the carrier who assists in violating the prohibitory law by knowingly bringing into the state for the purpose of delivery or knowingly delivering liquor to one who intends to use it unlawfully. Knowledge and participation may well in law as in ethics render him particeps criminis with the guilty receiver.

The point is sought to be made that the evidence was insufficient to show knowledge, but it was such as to convince any fair-minded person that a carrier who repeatedly delivers liquor in lots of from 10,000 to 30,000 pounds to known violators of the prohibitory law must be plethorically overstocked with ignorance not to know that such consignments are for other than the personal use of those receiving them. The jury reached the only possible sensible conclusion. This was approved by the trial court and there the matter must rest.

The statements of the shipments filed with the county clerk are said to have been incompetent evidence for the reason that they are required to be made by the carrier, and to use them against him is to make him a witness against himself. But he was not required to deliver or report such shipments if he had reason to believe they were intended for unlawful use, until he secured a written statement from the consignee that they were for his own use, and with this...