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facts was stipulated admitting the receipt, court of Iowa in this case. True, also, a the carriage, and the holding of the pack-writ of error was prosecuted from this court ages as above stated. The seizure was sus to the Vermont court upon the assumption tained. Appeal was taken to a district that the commerce clause of the Constitucourt. The express company and its agenttion was involved, but this court dismissed amended their answer, specially setting up the writ of error because it did not appear the commerce clause of the Constitution of that the commerce clause of the Constituthe United States. There was judgment in tion was relied on in the state court, was in favor of the express company, and the state any way called to the attention of that of lowa appealed to the supreme court and court, or was passed upon by it. As on this obtained a reversal. 118 Iowa, 447, 92 N. record it appears that the protection of the W. 66. This writ of error was prosecuted. commerce clause was directly invoked in the

state court, it is apparent that the O'Neil Mr. Lewis Cass Ledyard for plaintiffs Case is inapposite. And as, in order to dein error.

cide the contention that the judgment beMr. Charles W. Mullan for defendant low rests upon an adequate non-Federal in error.

ground, we must necessarily consider how

far the C. O. D. shipment was protected by Mr. Justice White, after making the the commerce clause of the Constitution, foregoing statement, delivered the opinion which is the question on the merits, we pass of the court:

from the motion to dismiss to the considerAlthough the majority of the supreme ation of the rights asserted under the comcourt of lowa doubted the correctness of a merce clause of the Constitution. ruling previously made by that court, never- We can best dispose of such asserted theless it was adhered to under the rule of rights by a brief reference to some of the stare decisis, and was made the basis of the controlling adjudications of this court. decision in this cause. In the previous case In Bowman v. Chicago & N. W. R. Co. 125 it was held by the supreme court of Iowa U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. that, where merchandise was received by a | 823, 8 Sup. Ct. Rep. 689, 1062, it was held carrier with a duty to collect the price on that the statutes of Iowa forbidding common delivery to the consignee, the merchandise carriers from bringing intoxicating liquors remained the property of the consignor, and into the state of Iowa from another state was held by the carrier as his agent with or territory without obtaining a certificate authority to complete the sale. Upon this required by the laws of Iowa was void, as premise it was decided that intoxicating being a regulation of commerce between the liquors shipped C. 0. D. from another state states, and, therefore, that those laws did were subject to be seized on their arrival in not justify a common carrier in Illinois Iowa, in the hands of the express company. from refusing to receive and transport inSustaining, upon this principle, the seizure toxicating liquors consigned to a point within this case, the supreme court of Iowa did in the state of Iowa. not expressly consider the defense based on In Leisy v. Hardin, 135 U. S. 100, 34 L. the commerce clause of the Constitution of ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. the United States, because the court deemed Rep. 681, it was held that a law of the state that its ruling on the subject of the effect of Iowa, forbidding the sale of liquor in that of the C. 0. D. shipment was a wholly non- state, could not be made to apply to liquors Federal ground, broad enough to sustain the shipped from another state into Iowa, before conclusion reached. And this the court con- the merchandise had been delivered in Iowa, sidered was sanctioned by O'Neil v. Ver. and there sold in the original package, withmont, 144 U. S. 324, 36 L. ed. 450, 12 Sup. out causing the statute to be a regulation Ct. Rep. 693.

of commerce, repugnant to the Constitution In accord with the opinion of the supreme of the United States. In Rhodes v. Iowa, court of Iowa it is insisted at bar that this 170 U. S. 412, 42 L. ed. 1088, 18 Sup. Ct. writ of error should be dismissed for want Rep. 664, the same doctrine was reiterated, of jurisdiction, because the decision below except that it was qualified to the extent involved no Federal question, and the case called for by the provisions of the act of of O'Neil v. Vermont, 144 U. S. 324, 36 L. Congress of August 8, 1891 (26 Stat. at L. ed. 450, 12 Sup. Ct. Rep. 693, is relied upon. | 313, chap. 728, U. S. Comp. Siat. 1901, p. The contention is untenable. As pointed 3177), commonly known as the Wilson act. out in Norfolk & W. R. Co. v. Sims, 191 U. In that case a shipment of intoxicating S. 446, 48 L. ed. 256, 24 Sup. Ct. Rep. 151, liquors had been made into the state of the view taken of the O'Neil Case is a mis- Iowa froin another state, and the agent of taken one. True, in that case the supreme the ultimate railroad carrier in Iowa was court of Vermont gave to a C. O. D. shipment proceeded against for an alleged violation the effect attributed to it by the supreme' of the Iowa law, because, when the merchan. dise reached its destination in Iowa, he had But we need not consider this subject. moved the package from the car in which it Beyond possible question, the contract to had been transported to a freight depot, pre- sell and ship was completed in Illinois. The paratory to delivery to the consignee. The right of the parties to make a contract in contention was that, as by the Wilson act, Illinois for the sale and purchase of mer. the power of the state operated upon the chandise, and, in doing so, to fix by agreeproperty the moment it passed the state ment the time when and condition on which boundary line; therefore the state of Iowa the completed title should pass, is beyond had the right to forbid the transportation question. The shipment from the state of of the merchandise within the state, and to Illinois into the state of Iowa of the mer. punish those carrying it therein. This was chandise constituted interstate commerce. not sustained. The court declined to ex- To sustain, therefore, the ruling of the court press an opinion as to the authority of Con- below would require us to decide that the gress, under its power to regulate commerce, law of Iowa operated in another state so as to delegate to the states the right to for- to invalidate a lawful contract as to inbid the transportation of merchandise from terstate commerce made in such other state; one state to another. It was, however, de- and, indeed, would require us to go yet cided that the Wilson act manifested no at- further, and say that, although, under the tempt on the part of Congress to exert such interstate commerce clause, a citizen in one power, but was only a regulation of com- state had a right to have merchandise conmerce, since it merely provided, in the case signed from another state delivered to him of intoxicating liquors, that such merchan in the state to which the shipment was made, dise, when transported from one state to an- yet that such right was so illusory that it other, should lose its character as inter-only obtained in cases where, in a legal state commerce upon completion of deliv- sense, the merchandise contracted for had ery under the contract of interstate ship- been delivered to the consignee at the time ment, and before sale in the original pack- and place of shipment. ages.

When it is considered that the necessary The doctrine of the foregoing cases was result of the ruling below was to hold that, applied in Vance v. W. A. Vandercook Co. wherever merchandise shipped from one 170 U. S. 438, 442, 42 L. ed. 1100, 1102, 18 state to another is not completely delivered Sup. Ct. Rep. 674, to the right of a citizen to the buyer at the point of shipment so as of South Carolina to order from another to be at his risk from that moment, the state, for his own use, merchandise, con movement of such merchandise is not intersisting of intoxicating liquors, to be deliv- state coinmerce, it becomes apparent that ered in the state of South Carolina.

the principle, if sustained, would operate Coming to test the ruling of the court be- materially to cripple, if not destroy, that low by the settled construction of the com- freedom of commerce between the states merce clause of the Constitution, expounded which it was the great purpose of the Conin the cases just reviewed, the error of its stitution to promote. If upheld, the docconclusion is manifest. Those cases rested trine would deprive a citizen of one state of upon the broad principle of the freedom of his right to order merchandise from another commerce between the states, and of the state at the risk of the seller as to delivright of a citizen of one state to freely con- ery. It would prevent the citizen of one tract to receive merchandise from another state from shipping into another unless he state, and of the equal right of the citizen assumed the risk; it would subject conof a state to contract to send merchandise tracts made by common carriers, and valid into other states. They rested, also, upon by the laws of the state where made, to the the obvious want of power of one state to laws of another state; and it would remove destroy contracts concerning interstate com- from the protection of the interstate commerce, valid in the states where made. merce clause all goods on consignment upon True, as suggested by the court below, there any condition as to delivery, express or imhas been a diversity of opinion concerning plied. Besides, it would also render the the effect of a C. 0. D. shipment, some commerce clause of the Constitution inopcourts holding that, under such a shipment, erative as to all that vast body of transacthe property is at the risk of the buyer, and tions by which the products of the country therefore that delivery is completed when move in the channels of interstate commerce the merchandise reaches the hands of the by means of bills of lading to the shipper's carrier for transportation; others deciding order, with drafts for the purchase price atthat the merchandise is at the risk of the tached, and many other transactions essenseller, and that the sale is not completed tial to the freedom of commerce, by which until the payment of the price, and deliv- the complete title to merchandise is postery to the consignee, at the point of destina- poned to the delivery thereof. tion.

But general considerations need not be further adverted to in view of prior deci- | almost too numerous for citation, and the sions of this court relating to the identical one under consideration is clearly controlled question here presented. In Caldwell v. by them. The sewing machine was made North Carolina, 187 U. S. 622, 47 L. ed. 336, and sold in another state, shipped to North 23 Sup. Ct. Rep. 229, the facts were these: Carolina in its original package for delivery The Chicago Portrait Company shipped to to the consignee upon payment of its price. Greensboro, North Carolina, by rail, con- It had never become commingled with the signed to its order, certain pictures and general mass of property within the state. frames. At Greensboro the company had While technically the title of the machine an agent who received the merchandise, put may not have passed until the price was the pictures and frames together, and deliv- paid, the sale was actually made in Chiered them to the purchasers who had or- cago; and the fact that the price was to be dered them from Chicago. The contention collected in North Carolina is too slender a was that the portrait company was liable to thread upon which to hang an exception of a license charge imposed by the town of the transaction from a rule which would Greensboro for selling pictures therein, and otherwise declare the tax to be an interferthis was supported by the argument that, ence with interstate commerce.” although the contract for sale was made in The controlling force of the two cases last Chicago, it was completed in North Caro- reviewed upon this becomes doubly manifest lina by the assembling of the pictures and when it is borne in mind that the power of frames, and the delivery there made. It the states to levy general and undiscrimwas held that the license could not be col-inating taxes on merchandise shipped from lected, because the transaction was an in-one state into another may attach to such terstate commerce one. In the course of the merchandise before sale in the original opinion, after a full review of the author- package when the merchandise has become ities, it was observed (p. 632, L. ed. p. 341, at rest within the state, and therefore enSup. Ct. Rep. p. 233):

joys the protection of its laws, and this up“It would seem evident that if the vendor on the well-recognized distinction that the had sent the articles by an express company, movement of merchandise from state to which should collect on delivery, such a state, whilst constituting interstate commode of delivery would not have subjected merce, is not an import in the technical the transaction to state taxation. The sense of the Constitution. American Steel same could be said if the vendor himself, or & Wire Co. v. Speed, 192 U. S. 500, 48 L. ed. by a personal agent, had carried and deliv- 538, 24 Sup. Ct. Rep. 365. ered the goods to the purchaser. That the As from the foregoing considerations it articles were sent as freight, by rail, and results that the court below erred in refuswere received at the railroad station by an ing to apply and enforce the commerce agent, who delivered them to the respective clause of the Constitution of the United purchasers, in nowise changes the character States, its judgment must be reversed. of the commerce as interstate."

The judgment of the Supreme Court of In Norfolk & W. R. Co. v. Sims, 191 U. Iowa is reversed, and the cause is remanded S. 441, 48 L. ed. 254, 24 Sup. Ct. Rep. 151, to that court for proceedings not inconsistthese were the facts: A resident of North

A resident of North ent with this opinion. Carolina ordered from a corporation in Chicago a sewing machine. The machine was Mr. Justice Harlan dissents. shipped under a bill of lading to the order of the buyer, but this bill of lading was

(196 U. S. 147) sent to the express agent at the point of delivery in North Carolina, with instructions ADAMS EXPRESS COMPANY, Piff. in to surrender the bill on payment of a C. 0.

Err., D. charge. The contention was that the

V. consummation of the transaction by the ex

STATE OF IOWA. press agent in transferring the bill of lading upon payment of the C. O. D. charge was a Error to state courtdecision on non-Fedo sale of the machine in North Carolina,

eral ground commerce - 0. 0. D. shipwhich subjected the company to a license

ments of intoxicating liquorswhen subtax. The contention was held untenable.

ject to seizure under state law. Calling attention to the fact that the contract of sale was completed as a contract This case is governed by the decision in Amer

ican Express Company v. Iowa, ante, p. 182. in Chicago, and after reviewing some of the authorities on the subject of interstate com

[No. 82.] merce, the court said (p. 450, L. ed. p. 258, Sup. Ct. Rep. p. 154):

Argued December 2, 1904. Decided January “Indeed, the cases upon this subject are

3, 1905.

N ERROR to the Supreme Court of the upon which the price was to be collected

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V.

affirmed a judgment of the District Courtant must be found guilty of keeping and of Madison County of that State, entered maintaining a place for the sale of intoxiupon a verdict finding an express company cating liquors within the meaning of the guilty of maintaining a nuisance in hold- Iowa statutes. ing for delivery to the consignees intoxicat- On appeal to the supreme court of Iowa ing liquors shipped C. 0. D. from other from the judgment of conviction the action states. Reversed and remanded for further of the trial court was approved upon the proceedings.

authority of the case of the State of Iowa See same case below (Iowa), 95 N. W. against the American Express Company, 1129.

and at bar it was conceded that the issues The facts are stated in the opinion. in this case “are identical in every particu

Mr. Lawrence Maxwell, Jr., for plain-lar” with those which were involved in that tiff in error.

case. As we have just reversed the judgMr. Charles W. Mullan for defendant ment of the supreme court of Iowa in the in error.

American Express Company Case (196 U.

S. 133, 25 Sup. Ct. Rep. 182, 49 L. ed. Mr. Justice White delivered the opinion 417), it follows, for the reasons stated in of the court: This was an indictment against the Ad- in this must also be reversed.

the opinion in that case, that the judgment ams Express Company, in a court of Iowa,

The judgment of the Supreme Court of for maintaining a nuisance in violation of Iowa is reversed, and the cause is remanded a section of the Code of that state. It was to that court for proceedings not inconsischarged in the indictment, in substance, that tent with this opinion. . the Adams Express Company, between July and December, 1900, at St. Charles, Mad

Mr. Justice Harlan dissents. ison county, Iowa, used a building for the purpose of selling intoxicating liquors therein, contrary to law, and that the company

(196 U. S. 175). owned and kept in said building intoxicat- ADOLFO SIXTO, Plff. in Err., ing liquors with the intent unlawfully to sell them within the state, contrary to an

LAUREANO SARRIA. Iowa statute. There was a plea of not guilty, a trial and verdict of guilty, and a Payment-effect of, to discharge liability sentence imposing a fine of $350 and costs. when made pursuant to decree-trial

An agreed statement of facts was stipu- province of court and jury. lated, from which it appears that the Adams Express Company was a common car

1. Payments by a mortgagor to the person who rier, engaged in the express business be

has been decreed the heir ab intestato of the tween the states of Missouri and Iowa; that

mortgagee in proceedings under the Porto

Rico Code, $8976-980, are not made at the it received the liquor in question at St. Jo- risk of being required to respond to others seph, Missouri, to be carried to St. Charles, who may subsequently be found to be coheirs Iowa, there to be delivered to the consignees, because the decree expressly reserved the whose names were upon the packages, and

rights of third parties. that each and all were marked C. 0. D.,

Payment of debts due an intestate to the

legally declared heirs is not made at the risk meaning that they were not to be delivered

of being required to respond to others who by the express company to the consignees

may within five years establish a right to the until the purchase price and the express property, because the Porto Rico Mortgage charges were paid to the agent of the ex- Law provides that property acquired through.

inheritance or legacy cannot be cleared until press company. It was further recited in

five years from the date of recording; but the statement of facts that the only connec

the effect of the proceedings to designate the tion of the Adams Express Company with heirs ab intestato is, under the Porto Rico the transaction or transactions in relation Code, $$ 1000, 1001, to permit them, after to said liquors was as a common carrier,

final decision, to receive and collect the es.

tate. having received the same in Missouri for carriage to the consignees at St. Charles, 3. Payment into court of sums due under a

mortgage, pending proceedings under Porto Lowa.

Rico Code, $$ 976-980, to have the petitioner The trial court charged the jury, in sub- declared sole heir ab intestato of the mort. stance, that if, from the evidence, it ap- gagee, discharged the obligation, where made

under an order of the court and before any peared, beyond a reasonable doubt, that the

proceedings were begun to establish the rightsdefendant express company held at its de

of an alleged coheir. pot, for delivery to the consignees, pack-4. The validity of a payment on the principal : ages of liquor shipped from other states,

of a mortgage to the person who has been

2.

decreed the sole heir ab intestato of the mort- tion contained the usual averments in asgagee in proceedings taken under Porto Rico sumpsit, of promise and default. The deCode, &$ 976-980, is a question for the jury, fendant filed a plea and amended plea to where the evidence shows that it was made more than one month before maturity, and this declaration, which set up the general after an unsuccessful attempt by a son of issue, and for further plea averred: the mortgagee, whose relationship was well “And for a further and second plea to the known to the mortgagor, to establish his said declaration, the defendant says that on rights by invoking the “voluntary jurisdic- the fifteenth day of May, eighteen hundred tion" of the court, and on the same day on which he began a "contentious” proceeding, and ninety-two, the defendant became inwhich the court had held was his only rem-debted in the sum of sixteen thousand doledy, making the adjudged heir a party de- lars (16,000) Mexican dollars, money then fendant, and seeking an order requiring the current in Porto Rico, to one Manuel Sixto, registrar to make a cautionary entry concerning the mortgaged property, and requiring on account of the purchase price of a farm the mortgagor to retain, at the disposition of situated in the island of Vieques, district of the court, whatever sums he owed to the Porto Rico, and called 'Monte Santo;' that mortgagee's estate.

on the said fifteenth day of May, eighteen 6. After a judgment of an appellate court re hundred and ninety-two, the defendant made

instating an order of the court below by and constituted a mortgage upon the said which instalments due under a mortgage had been directed to be paid into court, pending farm in favor of the said Sixto, as security the determination of the rights of a party for the payment of the aforesaid amount of claiming to be an heir of the mortgagee, who sixteen thousand (16,000) Mexican dolhad died intestate, the mortgagor, acting with lars, together with a certain interest as stipfull knowledge of this decision of the higher | ulated in the said instrument of mortgage; court, cannot discharge his liability by ob- that thereafter the said mortgage was duly taining an order from the lower court permitting the withdrawal of his deposit to pay registered in the registry of property of an assignee of the mortgage, and by paying Humacao, Porto Rico, on the eleventh day such assignee pursuant to a decree in a suit of July, eighteen hundred and ninety-two; to which the alleged heir was not a party.

that the payment of the aforesaid sum of

sixteen thousand (16,000) Mexican dollars, (No. 40.]

as provided for in the said instrument of Submitted November 3, 1904. Decided Jan-mortgage, was to be made in the manner foluary 3, 1905.

lowing, to wit: Four thousand (4,000)

dollars on the fifteenth day of May, eighteen ERROR to the District Court of the hundred and ninety-three, and four thousUnited States for the District of Porto and (4,000) dollars on the fifteenth day of Rico to review a judgment in favor of de- May of the years eighteen hundred and fendant in an action of assumpsit. Reversed ninety-four, eighteen hundred and ninetyand remanded for further proceedings. five, and eighteen hundred and ninety-six.

And the defendant further says that the Statement by Mr. Justice Day:

aforesaid Emanuel Sixto departed this life This is a writ of error bringing in review on the twenty-seventh day of November, the proceedings of the district court of the eighteen hundred and ninety-two, before any United States for the district of Porto Rico. of the instalments aforesaid had fallen due;

The original action was in assumpsit, that the said Sixto died intestate, and soon brought by Adolfo Sixto, an alien and a sub- after his death, to wit, in the year eighteen ject of the King of Spain, against Laureano hundred and ninety-three, judicial proceedSarria, a citizen of Porto Rico. The decings touching and respecting the settlement laration set forth in substance:

and inheritance of the estate of the said That on November 27, 1892, the defendant Manuel Sixto, deceased, and which said prowas indebted to one Manuel Sixto, since de ceedings are known in the law of Porto Rico ceased, in the sum of $16,000, Spanish mon- as 'proceedings ab intestato,' were instituted ey, with interest from May 15 of the same in the court of first instance of Humacao, year, which sum said Sarria had promised Porto Rico, the said court being then and to pay in four annual instalments, falling there a court of record and of general jurisdue respectively on the 15th day of May of diction; and the said court in said proceedeach and every year from 1893 until 1896, ings by a decree dated the fifteenth day of inclusive. That the said Manuel Sixto de- June, eighteen hundred and ninety-three, orparted this life on November 27, 1892, leav- dered the said defendant to pay into and deing two children, plaintiff and one Maria posit with the said court all sums of money Belen Sixto Melendez, as his heirs at law. then due by the said defendant to the said That as such heir the plaintiff was entitled estate of the said Manuel Sixto, deceased, by to one half of the indebtedness of $16,000, virtue of the aforesaid mortgage; and the Spanish money, with interest at the rate of defendant thereupon and in obedience to the 8 per cent from May 15, 1892. The declara- said order of the said court did, on the

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