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A well-considered opinion upon this question, in which the same view was taken was delivered by Judge Brown of the southern district of New York in The W. L. White, 25 Fed. 503, decided shortly after the passage of the amendment of 1884.
The holding in these cases rests largely upon the authority of Mr. Justice Story's opinion in Reed v. Canfield, 1 Sumn. 195, 203, and seems to be now generally adopted by the courts, and in my opinion they declare the correct principle.
It is also well settled that the owner of the vessel is liable for the expense of transportation home of a seaman left in a hospital in a foreign port. Callon v. Williams, 2 Lowell 1; Brunent v. Taber, 1 Sprague 243; The Centennial, 10 Fed. 397.
As the medical and transportation expenses here in question have all been settled out of funds belonging to the United States, and as they were paid to relieve a distressed seaman, and after notice had been given to the Matthew Turner Co. that they were primarily liable for same and demand made for payment, it is my opinion that said company may be held liable therefor.
This conclusion is, of course, based on the assumption that there was no legitimate reason for the consul to discharge Frederickson at the instance of the master of the vessel. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF STATE.
NATIONAL BANKS COLLECTING PURCHASE PRICE OF INTOXICATING LIQUORS SHIPPED FROM ONE STATE INTO ANOTHER-CRIMINAL CODE, SECTION 239.
Secton 239 of the Criminal Code, which prohibits the collection of the
purchase price of intoxicating liquors by a person acting in connection with the transportation thereof from one State into another, does not apply to banks, collecting drafts with bill of lading attached, where the shipment is made to a real consignee upon an order sent by him and filled by shipment from the dealer's place of business.
Where consignments of liquor are made to fictitious persons and the bills
of lading, with drafts attached, are sent to a bank with such instructions that the goods are delivered to anybody who will pay the draft and accept the goods, even though the person to whom the goods are delivered has not previously ordered the liquor, such a transaction would constitute a sale by the bank and the bank in such a case would be amenable to discipline by the State for selling liquor contrary to the State law, and also to discipline by the Federal authorities for selling liquor without compliance with the provisions of the internal-revenue
laws. Such a business, moreover, is clearly beyond the powers of a national
bank, and if the Secretary of the Treasury is satisfied that there is any considerable amount of dealing of that character by banks, he might well issue a general warning to them against engaging in such ultra vires transactions.
DEPARTMENT OF JUSTICE,
May 3, 1911. Sir: I am in receipt of your letter of 25th ultimo, transmitting to me a copy of an opinion of the Secretary of the Treasury, dated April 10, 1911, replying to a suggestion that the attention of the national banks be called by proper circular to the provisions of section 239 of the Criminal Code of the United States (35 Stat. 1088) and of their application to certain transactions hereinafter referred to. This section reads as follows:
“Any railroad company, express company, or other common carrier, or any other person who, in connection with the transportation of any spirtuous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, into any other State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any foreign country into any State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, shall collect the purchase price or any part thereof, before, on, or after delivery, from the consignee, or from any other person, or shall 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, shall be fined not more than five thousand dollars."
The chief special officer of the Bureau of Indian Affairs, writing to the Commissioner of Indian Affairs, refers to a conference which he had had with the attorney general of Oklahoma concerning the enforcement of this act, and in his letter states that a practice has grown up of shipping alcoholic and intoxicating liquors from the State of Missouri, where dealing in such liquors is permitted by law, into the State of Oklahoma, where such traffic is prohibited by law. The method of carrying on the business is described in a bill in equity filed in the United States circuit court for the eastern district of Oklahoma in December, 1909, quoted in the letter of the chief special officer for the Indian Bureau in the following language:
“That their principal method and custom of making shipments into other States, including the State of Oklahoma, is to receive mail orders for said shipments from its customers outside the State for sales and shipments of liquors to be made in Missouri, and directed to such other States. That after said orders are accepted by complainants, they are delivered at Kansas City, Mo., to various railroad companies and other common carriers transporting freight from said State of Missouri to such other States, and more particularly to various points in the State of Oklahoma, where said customers reside. That in all cases where goods are sold and delivered to the carrier in Kansas City in the State of Missouri, the said sales are made outside of the State of Oklahoma and the goods are delivered to the common carrier for the purpose of making delivery to the consignee only.
“Complainant further shows that after delivering said liquors to the carriers for shipment as aforesaid in said State of Missouri to Oklahoma, they receive from the carrier a bill of lading, which bill of lading is generally made out in the following form, substantially, and forward said bill of lading to a bank or some responsible person at the home of the consignee, attached to which is a sight draft for the purchase price of the liquor. The customer pays the draft and receives the bill of lading, and presents the same to the railroad company and receives the shipment. This method, as above stated, is known to the
railroad and to the public generally by the various terms of ‘shippers' order,' 'order notify,' and 'sight draft and bill of lading' method. On each box or package thus sent out is marked with either the full name or initials of the consignees and a specific number; that the bill of lading contains the full name of the consignee together with the number marked upon the box or package. The bill of lading used by complainants reads as follows:
" Received from Harvest King, in apparent good order, the following articles marked below to be delivered in like good order: Kansas City, Mo.,
R. R. To shippers' order, notify at
“The railway company, or the common carrier, fills in the blanks so as to agree with the dates, name of purchaser, character of goods, and the name of the consignee to be notified and the point in the State of destination named in the bill of lading, and the custom and understanding between the parties to said transaction is that it gives to the shipper the right to stop said goods at any time before said goods are delivered to the purchaser at their destination in Oklahoma, and before the surrender of the bill of lading, and the goods are not delivered to said purchaser or consignee until they arrive at their destination, and are not delivered to the consignee until the production and surrender of the said bill of lading.”'
Upon this statement of facts, the chief special officer of the bureau requests that the Comptroller of the Currency be asked to call the attention of the national banks in the State of Oklahoma to section 239 of the Criminal Code, with the advice that the conduct of business as above described is in violation of its provisions. The Secretary of the Treasury expresses the opinion that, under the strict rule of construction applied to criminal statutes, banks are not violating the law by collecting the purchase price of liquor shipped in the course of business described above,
although a bill of lading be attached to the check or draft used as the means of collection, but, stating that the question is one more properly for the determination of this department, asks that the matter be submitted to me for an opinion as to the application of the statute quoted.
I concur in the opinion of the Secretary of the Treasury that the words of the statute “in connection with the transportation" qualify all of the following provisions of the section. Section 239 of the Criminal Code enacted March 4, 1909 (35 Stat. 1136), was passed as a step to regulate interstate commerce in intoxicating liquors, extending the principle embodied in the act of August 8, 1890 (26 Stat. 313), which, in effect, withdrew the protection of Congress from the sale of liquor in the original package by the consignee of an interstate shipment. It was intended to prevent express companies or common carriers from collecting from the consignee or purchaser of liquor shipped from one State into another any amount except the fees for transportation.
As stated by Mr. Houston in the debate in the House of Representatives when the bill was on its passage:
“It puts a stop to the shipment of liquors c. o. d., and thus prevents express or railroad agents from collecting pay for liquor and from becoming virtually the agents of the liquor dealers in selling their goods.” (Cong. Rec., 60th Cong., 2d sess., v. 45, pt. 3, p. 2584.)
In brief, it provides that no carrier or other person shall, in connection with the transportation of intoxicating liquors from one State into another, collect the purchase price thereof or act as agent for either buyer or seller in completing the sale, save only in the actual transportation and delivery of the goods. The act does not apply to banks, collecting drafts with bill of lading, attached, where the shipment is made to a real consignee upon an order sent by him and filled by shipment from the dealer's place of business. The collection of a draft for the purchase price of a commodity in that manner is the usual and ordinary method of carrying on business and is not connected with the transportation of the property within the meaning of the statute under consideration. The act does not pro