United States v. Eighty-Seven Barrels, etc., of Wine

• Citation: 180 F. 215
• Decision Date: 24 June 1910
• Docket Number: 26,28.,27
• Parties: UNITED STATES v. EIGHTY-SEVEN BARRELS, ETC., OF WINE. SAME v. SIXTY BARRELS OF WINE, ETC. SAME v. SIXTY-TWO BARRELS OF WINE.
• Court: U.S. District Court — District of Vermont

180 F. 215

UNITED STATES v. EIGHTY-SEVEN BARRELS, ETC., OF WINE. SAME v. SIXTY BARRELS OF WINE, ETC. SAME v. SIXTY-TWO BARRELS OF WINE.

Nos. 26, 27, 28.

United States District Court, D. Vermont.

June 24, 1910

William A. Lord and S. Hollister Jackson, for claimants.

Alexander Dunnett, U.S. Atty.

HOUGH District Judge.

The section of the Criminal Code upon which these actions are based is (in its material parts) as follows:

'Sec 240. Whoever shall knowingly ship * * * from one state * * * into any other state * * * any package of or package containing any * * * intoxicating liquor of any kind unless such package be so labeled on the outside cover as to plainly show the name of the consignee, the nature of its contents and the quantity contained therein, shall be fined not more than $5,000; and such liquor shall be forfeited to the United States and may be seized and condemned by like proceedings as those provided by law for the seizure and forfeiture of property imported into the United States contrary to law. ' Act March 4, 1909, c 321, 35 Stat. 1137 (U.S. Comp. St. Supp. 1909, p. 1464).

The two preceding sections of the Code, however, relate to the same legislative subject. Section 238 renders it criminal for 'any officer, agent or employe of any * * * common carrier' to knowingly deliver to 'any person other than the person to whom it has been consigned (unless upon the written order in each instance of the bona fide consignee) or to any fictitious person, or to any person under a fictitious name,' any intoxicating liquor arriving at its place of destination by interstate or international transportation; and section 239 renders it criminal for any common carrier transporting or delivering liquor after interstate or international transportation to 'collect the purchase price or any part thereof,' or 'in any manner act as the agent of the buyer or seller of any such liquor, for the purpose of buying or selling or completing the sale thereof, saving only in the actual transportation and delivery of the same.'

As these three sections of the Code are (unlike most of that act) new legislation-- and new not only in words but new in treatment of the subject-matter-- their history may be appropriately considered in order to ascertain something of congressional intent.

During the Sixtieth Congress there were pending in the Senate at least seven bills intended to regulate commerce in such manner as to aid the 'Prohibition' legislation of any state or territory. There were also at least two such bills introduced into the House of Representatives. Generally speaking, the Senate bills sought to accomplish their object by subjecting interstate and international shipments of liquor to the police power of the several states while still in transit or before final delivery by the carrier. In April, 1908, these proposals were the subject of an interesting and careful report by the Committee on the Judiciary (Senate Report No. 499 Sixtieth Congress). In that report the committee states the mischief (to the correction of which the proposed legislation was directed) to be 'the misuse of the facilities furnished by railroad companies, express companies, and other common carriers in bringing in liquors from outside the states to be paid for on delivery. ' That this mischief deserved correction the committee agreed; but, for constitutional reasons ably set forth in the opinions (embodied in the report) of Senators Rayner and Knox, it was deemed improper to recommend legislation in apparent conflict with the views regarding liquor shipments expressed in Vance v. Vandercook Co., 170 U.S. 452, 18 Sup.Ct. 674, 42 L.Ed. 1100.

The committee therefore reported to the Senate a bill framed by it (Sixtieth Congress, Senate 6576). This, usually called the 'Knox bill,' contained three paragraphs corresponding in substance to sections 238-240 of the Criminal Code. The only substantial differences between the third section thereof and section 240 aforesaid is the insertion of the word 'knowingly' before the word 'unlawful' at the beginning of the section, and the requirement that each package shall not only be so labeled as to show the nature of its contents and the quantity contained therein, but also the name of the consignee. The changes just noted, and especially the requirement concerning the name of the consignee, are plainly in furtherance of the object looked upon with approval by the Senate Committee, viz.:

'That by requiring that all interstate shipments of liquor shall be plainly marked as to their contents, the (Knox) bill will enable the several states to trace and to control the disposition and use of such liquors under their own police powers.'

The Criminal Code during its passage through the House of Representatives was amended by adding thereto what are now sections 238-240, being the substance of the Knox bill as enlarged in the House, and the new legislation in question was retained by the Conference Committee without any debate on the floor of either House so far as I can discover. Cong. Rec. March 3, 1909, vol. 43, p. 3791.

This history of legislation shows plainly that the object of the promoters of the bill was to restrict common carriers to the business of transportation only, so far as liquor is concerned, and to produce on the records of the delivering carrier evidence procurable by lawful subpoena of the identity of the recipient of any package containing liquor, which last result was thought to be attained by the requirement of section 238 that delivery should be made only to the consignee 'unless upon the written order in each instance of the bona fide consignee,' and by the further requirement of section 240 that any package delivered should bear upon it a description of the kind and quantity of its contents and 'the name of the consignee.'

It is observable that nowhere in these sections is the word 'owner' or 'purchaser' used. The requirement is not that the liquor package shall bear upon its exterior the name of the person buying or paying for it, or owing it or intending to consume its contents. The language is always that the package shall be delivered to 'the person to whom it has been consigned,' and that it shall be labeled with 'the name of the consignee,' and section 238 clearly recognizes the possibility and propriety of a transfer of title by authorizing delivery upon the written order of the consignee.

In the presentation of these cases no question has been made as to the form of proceeding or the method or manner of pleading. It has been assumed that the shipments about to be considered were 'knowingly' made, and the sole point submitted for consideration is whether the facts agreed upon show that the marking, labeling, or consigning of the liquor in question do or do not fall within the condemnation of the statute.

The stipulations on file show that at divers places in Vermont and one in New Hampshire reside various persons who wished to procure barrels of wine or kegs of brandy. These persons ordered the same from the Oliveto Wine Company or the Ciocca Lombardi Company, wine merchants of San Francisco, Cal. These companies permitted orders to accumulate, until the quantity so ordered was sufficient to load three freight cars-- a procedure permitting the vendors to obtain 'car load rates' on their shipments and save very considerable expense. The Oliveto Company accordingly shipped one car load from its California vinery to Barre, Vt., which car contained the number of barrels and kegs ordered from it by upwards of 80 different persons residing as aforesaid.

The Ciocca Company likewise shipped two car loads of wine, each containing the aggregate orders of an even larger number of customers.

For each one of the cars so loaded and shipped the shipper took out one bill of lading. In the case of the Oliveto Company the bill was 'straight'; that is, it recites the receipt from said Oliveto Company of 'one car load of wine' consisting of 87 barrels and 2 kegs 'consigned to Oliveto Wine Company, Barre, Vt.' The bill of lading is in terms 'nonnegotiable,' and at the foot thereof is written:

'Please deliver the car wine to Enrico Rulfo and oblige.

'Respectfully,

'Oliveto Wine Company.'

Rulfo lived at Barre, and had ordered a single barrel, which was on the car.

Both bills of lading taken out by the Ciocca Company are 'order' bills; that is, they acknowledge receipt from the vendor and shipper of a specified number of barrels and kegs of wine and brandy in certain cars, one of which is 'consigned to order of Ciocca Lombardi Company destination Barre, Vt., Notify G. Moruzzi at Barre, Vt.' And the other similarly consigned, except that the party to be notified is A. Sassorossi. Both persons to be notified had ordered small quantities of wine, which were parts of the several shipments.

Each barrel and keg of this liquor bore upon it a statement of the nature of the spirits contained therein, the quantity thereof, the name of the Oliveto or Ciocca Company (as the case might be), and the name of the person who had ordered it and for whom it was ultimately intended.

The bill of lading issued for each car declared the name of the shipping corporation and set forth that the contents of the car were to be delivered (in one instance) to the Oliveto Company itself and (in the other two instances) to the order of the Ciocca Company. The manifesting or freight records of the various railroads over which these cars passed followed the bills of lading, and showed in each instance that a car load of wine was deliverable to a certain corporation or its...