State v. U.S. Express Co.

• Citation: 145 N.W. 451,164 Iowa 112
• Parties: STATE OF IOWA, Appellant, v. THE UNITED STATES EXPRESS CO., Defendant and THE HAMM BREWING COMPANY, Intervener, Appellees
• Decision Date: 17 February 1914
• Court: United States State Supreme Court of Iowa

145 N.W. 451

164 Iowa 112

STATE OF IOWA, Appellant, v. THE UNITED STATES EXPRESS CO., Defendant and THE HAMM BREWING COMPANY, Intervener, Appellees

Supreme Court of Iowa, Des Moines

February 17, 1914

Appeal from Wapello District Court.--HON. F. M. HUNTER, Judge.

ACTION in equity to enjoin an alleged liquor nuisance; to enjoin defendant from distributing or delivering intoxicating liquors, or aiding in the distribution or delivery thereof contrary to law, from transporting, conveying, and carrying or distributing liquors, either in cars, wagons, or otherwise, contrary to law, in Wapello county, Iowa or in the judicial district in which said county is located; for attorney's fees, etc. The defendant answered, pleading in substance that it is a common carrier, engaged in interstate commerce; that all that it did, or was charged with doing was shipping intoxicating liquors in interstate commerce without knowledge of any unlawful intent on the part of the consignee. It also pleaded that it did not violate any of the laws of this state or of Congress, and that, if said laws are so construed as to make their acts illegal, they are in violation of the Constitution of the United States, and of the state of Iowa. The Hamm Brewing Company, a corporation organized under the laws of, and doing a brewing business in, the state of Minnesota, intervened, claiming that it was engaged in the manufacture and sale of intoxicating liquors, in interstate commerce; that such business is lawful, and that it was using the express company as a means for doing its business; that it was making sales to different persons in many states, to individuals for their own personal use, as well as for sale after delivery to them. They also pleaded the unconstitutionality of the laws of this state and of Congress, particularly if they be held to prohibit the sale and delivery to a common carrier of intoxicating liquors for transportation to a nonresident of the state in which they do business, and for the consignee's own personal use. The case was tried to the court on these issues, resulting in a decree dismissing plaintiff's petition, and the appeal is from that decree.--Reversed and Remanded.

Reversed and Remanded.

George Cosson, Attorney General, L. H. Salinger, Chester W. Whitmore, C. A. Robbins, and George L. Gillies, for the State.

Parker, Parrish & Miller (Lawrence Maxwell and Joseph S. Graydon, on the brief), for appellee United States Express Co.

E. R. Mitchell, (Lawrence Maxwell and Joseph S. Graydon, on the brief), for appellee Hamm Brewing Co.

OPINION

DEEMER, J.

The nature of the action as indicated by the prayer of the petition has already been stated; but to fully understand the case, it is deemed advisable to quote some of the allegations of that petition. They are, in substance, as follows: "That the defendant, the United States Express Company, is and was at all the times hereinafter mentioned a corporation possessed of and using certain cars which it leases and also possessing certain horses and wagons, and was a common carrier for hire, carrying goods, wares, and merchandise to and from the city of Ottumwa, Wapello county, Iowa over the line of railway used and operated by the Chicago, Rock Island & Pacific Railway Company. That upon the arrival of said goods, wares, and merchandise in the said city of Ottumwa, the defendant uses said horses and wagons in delivering the said goods, wares, and merchandise to the consignees thereof in said city, hauling the same through the streets and alleys of said city. That for many weeks since March 4, 1913, and prior to the institution of this action, defendant has been, and still is, engaged in transporting, conveying, delivering, and aiding in delivering and distributing to persons in said city of Ottumwa and county of Wapello, large quantities of intoxicating liquors, without first having been furnished with a certificate from the clerk of the court issuing the permit, showing that the consignee is a permit holder and authorized to sell liquors in the county of Wapello and state of Iowa aforesaid. That a very large part or portion of the persons to whom said intoxicating liquors are conveyed and delivered, thereafter sell, barter, and deliver the same in violation of the prohibitory laws of the state of Iowa and that defendant well knows this to be a fact. That in so transporting, conveying, delivering, and aiding in delivering and distributing the intoxicating liquors as aforesaid the defendant uses said cars, horses, wagons, and office. That by reason of the premises the said cars, horses, wagons, and office so used in transporting, conveying, delivering, and distributing the intoxicating liquors as aforesaid, and in aiding in delivering and distributing the same, constitute a nuisance, and the defendant has established and is using and maintaining a nuisance." We do this to show that this is not a criminal proceeding or an action to enforce a penalty under section 2419 of the Iowa Code of 1897. The plaintiff in its pleading seems to place some reliance upon that section, doubtless to show that the act of transporting liquor after it is brought into this state in interstate commerce is interdicted by our law, and in doing these acts it was unlawfully handling liquors, or aiding and abetting others therein for the reason that the handling of liquor in this state is unlawful, and that all who aid or abet therein are guilty of a nuisance, and may be enjoined in a civil proceeding. So much for the issues.

The case was tried upon a stipulation, and certain concessions of fact, supplemented by some oral testimony, and the trial court made the following, among other, findings of fact:

The provisions of the mulct law contained in the statutes of Iowa have not been in force in Ottumwa at any time on or since March 4, 1913. That on March 14, 1913, the defendant received from the Hamm Brewing Company of Rock Island, Ill., at its (the defendant's) office at Rock Island, Ill., one case of beer consigned to J. Erbacher at Ottumwa, Iowa and that it transported the case of beer from Rock Island, Ill., to Ottumwa, Iowa and there delivered the same to said J. Erbacher, consignee, on the 21st day of March, 1913, who receipted therefor and paid the defendant the regular tariff rate thereon. That on various dates since March 14, 1913, the defendant received at its office in Rock Island, Ill., from the same consignor consigned to the same consignee, at Ottumwa, Iowa divers cases of beer, which it transported and delivered to the consignee in like manner and effect as the shipment made March 14, 1913. That in each instance of shipment above referred to, the consignors were lawfully engaged in the sale and shipments of intoxicating liquors at Rock Island, Ill., and the consignees, respectively, purchased the beer and liquors from the respective consignors, and paid for the same at Rock Island, Ill., and that each of said purchases and sales were lawful in so far as concerns the laws of the state of Illinois. That in each of the shipments of beer and liquors referred to, the cases and packages were marked and labeled in all respects in conformity with law, were shipped by continuous carriage from Rock Island, Ill., to Ottumwa, Iowa and there delivered to the consignees, and that the defendant company had no title to or interest in said beer and liquors or any part thereof, except as a carrier for hire and the legal tariff shipping rates thereon. That during the time ever since March 4, 1913, said J. Erbacher had and possessed a residence in Ottumwa, Iowa but did not have or possess a place where he engaged in lawful business; and during all of that time he had no right to keep with intent to sell, or sell, intoxicating liquors in Iowa to any person or for any purpose whatsoever, and that the beer and liquors delivered to J. Erbacher by the defendant were not delivered to him at his residence or any established place of lawful business in Ottumwa, Iowa but elsewhere in said city; and these facts were well known to the defendant at the time of the delivery, by it, of the beer and liquors above mentioned. I further find that at the time, and each of the times, that J. Erbacher purchased the liquors above mentioned, and during the time they were being transported and delivered to him, and after they were delivered to him, he was the sole person interested therein, and he intended, all of the time, to receive and possess with intent to sell the beer and liquors in Ottumwa, in violation of the laws of the state of Iowa. That his purpose and intent in the purchase, possession, and use of the liquors from the time of purchase was made, and while being transported, and as long as the liquors were in his custody and control, was to sell the same in violation of the laws of the state of Iowa. The defendant at the time of the delivery of the beer and the liquors to J. Erbacher did not have notice or actual knowledge that he was buying or receiving the same with the intent and purpose of selling it in violation of law, but was in possession of such facts that, upon reasonable inquiry, it would have ascertained he was buying and receiving and holding the beer and liquor with intent to sell the same in violation of the laws of Iowa and is therefore chargeable with such knowledge.

These findings of fact are not challenged by any of the parties to the controversy, and we need only say in this connection that, in so far as this case is concerned, the question of purchase and shipment to a consignee for his own personal use is entirely eliminated, as was the question of the criminal liability of either the defendant or the intervener. The findings of fact, even if challenged, have sufficient support in the testimony, and we...