United States v. Adams Exp. Co.

• Decision Date: 22 December 1902
• Docket Number: 5,024.
• Citation: 119 F. 240
• Parties: UNITED STATES v. ADAMS EXP. CO.
• Court: U.S. District Court — Southern District of Iowa

119 F. 240

UNITED STATES v. ADAMS EXP. CO.

No. 5,024.

United States District Court, S.D. Iowa, Eastern Division.

December 22, 1902

Indictment and Information 146

Lewis Miles, U.S. Atty., and George B. Stewart, Asst. U.S. Atty.

James C. Davis, for defendant.

McPHERSON District Judge.

This case is by indictment, charging the defendant as a joint-stock association (with the stockholders being unknown), within this district 'carrying on in the business of a retail liquor dealer without having paid the special tax as required by law. ' On motion of defendant the government was required to and has filed a bill of particulars. This bill is lengthy, but the substance is as follows: The defendant is a common carrier of goods, parcels and merchandise, doing business as such in Iowa, Illinois and other states, and the Dallas Transportation Company is a dealer in spirituous and other liquors at Dallas, Ill., and so known to be by defendant. That at the dates covered by the indictment the Dallas Company delivered at Dallas, Ill., to the defendant, for carriage and delivery at Birmingham, Iowa jugs containing each less than five wine gallons of such liquors, addressed and consigned to certain and divers parties at said Iowa town, orders therefor for said liquors having been received by and for said Dallas Company from its agent, who took said orders from the consignees. All of said consignments were shipped C.O.D.; that is, the defendant carried said liquors from Dallas, Ill., to Birmingham, Iowa, and was to and did collect from the consignee the carrying charges and the selling price or value of the liquors, and, after collecting the two sums, was to and did deliver the liquors to the consignee. Neither the Dallas Company nor the defendant has paid the special tax as a retail liquor dealer at Birmingham, Iowa. When the price of the liquor was thus collected from the consignee by the defendant, it (the defendant) carried the money to Dallas, Ill., and turned it over to the Dallas Company, thereby completing the transaction. There were no bills nor invoices accompanying said liquors, and none delivered to the consignees. To this indictment, with the bill of particulars, defendant has demurred on the ground that the facts charged o not show the defendant to have carried on the business of

a liquor dealer.

Whether a bill of particulars is a matter of record or part of the indictment, and whether, with the indictment, it is subject to demurrer, are all probably to be answered in the negative. Whether such a bill shall be ordered seems to be discretionary with the court. It can be amended; while an indictment, of course, cannot be amended. An indictment often is in such general terms, and yet sufficient in law, as to largely fail to apprise the defendant of what he must meet on the trial. And the office of a bill of particulars is to advise the court, but more particularly the defendant, of what facts, more or less in detail, he will be required to meet. And the court will limit the government in its evidence to those facts set forth in the bill of particulars. In this case it was apparent from the general terms of the indictment, and the defendant being a corporation or joint-stock association, and from the crime charged, although the indictment was sufficient in law, that a bill of particulars ought to be filed; and, the demurrer going to both the indictment and the bill of particulars, and being so treated by counsel on both sides, the court will so regard it; because, if the facts so recited do not constitute a crime, there is no good purpose served in impaneling a jury and calling many witnesses from a distance, and then being compelled to direct a verdict for the defendant. Not because the law exacts it, but for the reasons stated, and none other, I will consider the case as if the indictment contained a recital of all the facts set forth in the bill of particulars.

The Dallas Company sells intoxicating liquors,-- a fact known by defendant. The Dallas Company, through an agent in Iowa, takes orders from Iowa parties for liquors. The Dallas Company hands the liquors over to defendant in Illinois for two or more purposes, the one being to carry them to a point on its own line in Iowa, where the consignee resides. Then, before turning them over to the consignee, it must collect from him the selling price. Then the consignee takes the liquors from defendant, and the defendant carries the money back to Illinois, and turns it over to the Dallas Company. Is the defendant thereby, in Iowa, engaged in the business of a liquor dealer? This court having no jurisdiction for crimes committed in Illinois, it is not material what was done in that state, excepting as such acts throw light on and are connected with the transactions within this district; and I fail to note the importance of the allegations that no bills nor invoices accompanied the shipment. And I likewise fail to appreciate any force in the argument of defendant's counsel that the 'commerce clause' of the constitution in any way controls this case, and I need only state what the leading cases hold. Leisey v. Hardin, 135 U.S. 100, 10 Sup.Ct. 681, 34 L.Ed. 128, held a state statute as void which require the shipment of liquors in the original package to a point within the state from a point without the state, and which liquors must be accompanied with a certificate from the local authorities that the liquors were to be sold only for certain purposes other than for a beverage; and the statute was held to be void because of the 'commerce clause.' Bowman v. Railroad Co., 125 U.S. 465, 8 Sup.Ct. 689, 31 L.Ed. 700, is in so far like the Leisey Case as that the only question was with reference to a state statute attempting to regulate and place conditions and burdens on commerce between the states. In re Rahrer, 140 U.S. 545, 11 Sup.Ct. 865, 35 L.Ed. 572, held that liquors brought from without to within the state should be within the provisions of the statute of the state because of a federal statute, and that such federal statute is a constitutional exercise of the power vested in congress. Rhodes v. Iowa, 170 U.S. 412, 18 Sup.Ct. 664, 42 L.Ed. 1088, held that the statute of the state, supplemented by the federal statute, making the state statute operative after the liquors once arrived within the state, could not apply to liquors in transit and before delivery to the consignee. These, and none of the other, cases under the 'commerce clause,' call for any review. Congress, and congress alone, has the power to regulate commerce between the states. When a state undertakes to regulate such commerce, however artful or disguised the form, such attempted regulation by the state is null and void. But while congress has the one power of regulating commerce between the states, it also has another power of imposing an internal revenue tax on all agencies doing a business. And an agency, person, or corporation doing an interstate business can no more escape such internal revenue tax than can an agency, person, or corporation doing a business wholly within one state. There is nothing in the proposition. At least it is so plain to me that there is not that I do not care to pursue the question further.

The only question, in my judgment, is, where and by whom were the liquors sold? If in Illinois, this court is without jurisdiction. If sold by the Dallas Company in Iowa, then the grand jury has made a mistake in naming a defendant in the indictment. Did the Adams Express Company carry on the business of a liquor dealer in Iowa? From the bill of particulars it is apparent that the principal business of the defendant is that of a common carrier, and as such it must receive, carry, and deliver to the consignee all merchandise offered to it by any and all persons within a reasonable time, for a reasonable compensation. It may exact the carrying charges in advance, or it may waive prepayment of such charges, in which event it has and retains a lien on such merchandise for the carrying charges, the payment of which by the consignee removes the lien. And it is within the knowledge of all men that such common carriers do a per...