United States v. Popper

• Decision Date: 18 December 1899
• Docket Number: 3,722.
• Citation: United States v. Popper, 98 F. 423 (N.D. Cal. 1899)
• Parties: UNITED STATES v. POPPER.
• Court: U.S. District Court — Northern District of California

98 F. 423

UNITED STATES v. POPPER.

No. 3,722.

United States District Court, N.D. California.

December 18, 1899

E. J Banning, Asst. U.S. Atty.

Cannon & Freeman, for defendant.

DE HAVEN, District Judge.

The indictment in this case charges that the defendant did, upon a day named, at the city and county of San Francisco, state of California, 'knowingly deposit and cause to be deposited with an express company, to wit, Wells, Fargo &amp Co.'s Express, for carriage from the city and county of San Francisco, in the state of California, to Winnemucca, in the state of Nevada, a certain package, then and there directed to 'Mrs. Ida Anderson, Winnemucca, Nevada,' and containing an article designed and intended for the prevention of conception. ' The defendant has demurred to this indictment, alleging as grounds,-- First, that the act of congress upon which it is based is unconstitutional; and second, that it is uncertain, in that it fails to properly describe the article alleged to have been contained in the package addressed to Mrs. Anderson.

1. The indictment is under the act of February 8, 1897 (29 Stat 512). That act, among other things, makes it 'unlawful for any person to deposit with any express company or other common carrier for carriage from one state or territory of the United States or the District of Columbia to any other state or territory of the United States or the District of Columbia, * * * any article or thing designed or intended for the prevention of conception. * * * ' It is contended, in support of the demurrer, that this provision of the statute attempts to legislate upon a matter to which the police power of the state extends, and over which it has exclusive jurisdiction. This contention cannot be sustained. Congress is given power, by section 8 of article 1 of the constitution, 'to regulate commerce with foreign nations and among the several states and with the Indian tribes ' This is a sovereign power, and I have no doubt that under it congress is authorized to forbid, as it has done in the provision of the act above quoted, interstate commerce in such articles as are named therein. The power to regulate commerce includes the power to declare what property or things may be the subject of commerce. Thus, in those cases in which it has been held that congress may lawfully prohibit the sale of intoxicating liquors to Indians in what is known as the 'Indian Country,' the power to enact such legislation is said to be derived from the authority to regulate commerce with the Indian tribes. U.S. v. Holliday, 3 Wall. 407, 18 L.Ed.

182; U.S. v. Forty-Three Gallons of Whisky, 93 U.S. 188 23 L.Ed. 846. In the first case...