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Westbury
. The main point about these reports is, IN Holmes, etc., Manuf"Co. v. Holmes

, etc., Metal

feeling of relief to the judgment which he may be this may be said to take the cake. The convenience able to form by the sterliug honesty of his own intel- of it is most admirable, since, like a 'flying point'at lect."

whist, it may be takeu advantage of at any moment. Men who are capable of writing such words as

At present, when one has murdered somebody, and these are capable even of tending toward codifica- got off on the ground of insanity, there is still the un

pleasantness of being confined during the queen's tion, perhaps of leading the Virginia Bar Associa- pleasure' afterward; but the beauty of the petit mal is tion in those arduous paths which extend forward that “a person may have only one or two attacks of it and upward to the stars.

in his life, without any traces of it being left in the system.' It appears therefore that, according to this

scientific theory, each of us may out the throats of at We have heretofore called the attention of our least two persons, without fear (to ourselves, which is

the main poiut) of future consequences. This reflecreaders to the novel experiment in reporting, which Sir Frederick Pollock is conducting in England, tion, to those who are so fortuuate as to have ouly a

couple of enemies in the world, will, as Mr. Peoksniff under the description of the “Revised Reports,

says, be ' very soothiug.'
The Law Times announces the near publication of
the first two volumes of the series and gives some
additional information relative to the enterprise.

NOTES OF CASES.
It appears that the work so auspiciously commenced
by Pollock was planned as far back as 1863, by Lord N

Co., New York Court of Appeals, Second Divisthat they are to be “an edition and not a selection, ion, June 2, 1891, 38 N. Y. St. Rep. 155, plaintiff, a and will be formed, not by choosing for republication domestic corporation, sold its stock and plant to the those cases which the editors deem important or in- defendant company, and took in part payment stock structive, but by omitting such cases and parts of of the defendant company. Subsequently a concases as appear to be clearly not important for the

tract was made by which plaintiff agreed to sell the current study and practice of the law.” “The de stock to the defendant, the same to be delivered cisions," it is added, “ will be treated, not as plain- upon the payment of certain promissory notes given tiffs having to make out the merits of their claim,

in payment therefor. In an action on one of the but as defendants with the benefit of possession. promissory notes, held, that the title to the stock Judgments will not be abridged except, on occasion, vested in the plaintiff company, and that there was as to statements of facts (a discretion constantly a valuable consideration for the note in suit. The used by reporters themselves), and except where the court said: “It is doubtless true that a corporation case is retained only for the sake of one or more cannot purchase or deal in stocks of other corporadefinite points out of those dealt with at the time; tions unless expressly authorized by law so to do. but a comparatively free hand will be used in re

Talmage v. Pell, 7 N. Y. 328; Berry v. Yates, 24 trenching prolix reports of arguments. Head-notes, Barb. 200; Milbank v. New York, L. E. & W. R. which are strictly no part of the report, will be cor- Co., 64 How. 20; Mechanics Mut. Sav. Bank v. Merirected and revised as often as it appears useful.” den Agency Co., 24 Conn. 159; Central R. Co. v. The work appears to be dealt with in an intelligent, Pennsylvania R. Co., 31 N. J. Eq. 475; Hazlehurst v. comprehensive and, at the same time, conservative Savannah R. Co., 43 Ga. 57; Valley R. Co. v. Lake spirit. As for the saving of space, our learned con- Erie Iron Co. (Ohio), 18 N. E. Rep. 486; People v. temporary estimates that six hundred and twenty- | Chicago Gas Trust Co., 130 Ill. 268-284; Franklin seven volumes of existing reports “can be rolled Co. v. Leviston Institution for Savings, 68 Me. 43; into fifty volumes of the revised.”

Hill v. Nisbet, 100 Ind. 341-349. It is equally true

however that it may do whatever may be necessary It would appear that the petit mal, of which Mr.

in the exercise of its corporate franchises. The sellJames Payn makes so much fun in a recent number ing of property and collection of debts is among the of The Independent, is only our old friend - Emo- powers given, and hence it may take title to all tional Insanity” in a new dress. The description kinds of property, even the stock of another comof this malady recalls to our minds a long series of pany, in the payment of a debt. Talmage v. Pell, murder trials in this country in which the plea has supra, and cases above cited. The statute under been successfully employed, especially in cases

which the plaintiff was incorporated provides that where the emotion producing the insanity was

'it shall not be lawful for such company to use any caused by a husband's discovery of his wife and her of their funds in the purchase of any stock in any paramour in flagrante delicto. Indeed we are not at

other corporation. Laws 1848, chap. 40, § 8. The all certain that the plea of emotional insanity has funds here spoken of evidently mean the money of outlived its usefulness yet in such cases. Mr. Payn's limit the powers of the corporation beyond that

company, and the statute was not intended to account is the unsophisticated version of a transatlantic mind :

already indicated. The plaintiff was a private man"It is, it seems, according to a medical witness in a public nature, and has attempted no combination

ufacturing corporation.

It exercises nu powers of a late murder case, a kind of temporary dementia which by which the public may in any manner be prejumay happen to anybody, during which one may cut a gentleman's throat without being aware of it.

diced. There are consequently no questions affectplea of insanity, when one is in trouble for homicide, ing public policy to be considered.

As a

The purpose of

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the company is expressed in a preamble to the reso- directors were not investing the funds of the screw lutions adopted authorizing the sale of its plant and company in the stock of the iron company. They stock of materials on hand to the defendant com- had on hand an unsalable rolling-mill, and they pany. It was, in short, to increase the business of owed a heavy debt for it, and one great object in the stockholders by adding to the manufacture of taking the stock in the iron company was to realize brass that of German silver and nickel alloys. The for the rolling-mill, and in part pay thereby the scheme adopted was the organization of a new cor- debt.' State of Kansas v. Western Irrigating Canal poration, bringing in some other persons with addi- Co., 40 Kans. 96; Leathers v. Janney, 41 La. Ann. tional capital. The stock in the new company was 1120; Hibernia Ins. Co. v. St. Louis & New Orleans subscribed for by Holmes and Edwards individually: Transportation Co., 13 Fed. Rep. 516; Taylor v. and the stock when finally issued was issued to Ed- North Star Gold Mining Co., 79 Cal. 285; Miner's wards. It is true he takes it as trustee, and holds Ditch Co. v. Zellerbach, 37 id. 543; State v. Butler, it as such for the plaintiff, but this we do not re- 86 Tenn. 614; Moraw. Priv. Corp., $ 212. The plaingard as necessarily ultra vires. The plaintiff had tiff has sold its rolling-mill, machinery, etc., to the the right, with the consent of its stockholders, to defendant. It has taken stock in the latter comsell its plant and retire from business, and it ap- pany in payment therefor.

Inasmuch as this was pears from the evidence in this case that the con- done with the consent of all of the stockholders, it sent of all the stockholders was given to the sale being the act of a private corporation, not in any that was made. In Kent v. Quicksilver Mining Co., manner harming the public, we see no reason for 78 N. Y. 159-186, Folger, J., in delivering the opin- condemning its title to the stock so obtained. ion of the court, says that "a corporation may do Palmer v. Cypress Hill Cemetery, 122 N. Y. 429-435. acts which affect the public to its harm, inasmuch But assuming the transaction to have been ultra vires, as they are per se illegal, or are malum prohibitum. the defense interposed would still be unavailable. The Then no assent of stockholders can validate them. plaintiff has the stock, and has paid for it. It canIt may do acts not thus illegal, though there is want not be recovered back by the defendant; for the of power to do them, which affect only the interest transaction is completed and closed. Whilst the of the stockholders. They may be made good by contract remained executory, if it was unauthorized, the assent of the stockholders, so that strangers to a stockholder or person interested might have inthe stockholders, dealing in good faith with the terfered by injunction, and prevented the transfer corporation, will be protected in a reliance upon of the property of the plaintiff to the defendant. those acts.' In the case of Treadwell v. Salisbury But the contract having become executed, the title Manuf"g Co., 7 Gray, 393-405, it was held that the of the stock now vests in the plaintiff, and it has directors of a manufacturing corporation may sell the power to sell and dispose of the same. Sistare the whole property of the corporation to a new cor- v. Best, 88 N. Y. 527-533; Milbank v. New York, poration, taking payment in shares of stock of the L. E. & W. R. Co., supra. The contract under new company, to be distributed among the stock - which the vote in suit was given was made in Deholders of the old company. In Ilonoe v. Boston cember, 1884, nearly four years after the plaintiff Carpet Co., 16 Gray, 493, it was held that one man- became the owner of the stock. No claim is made ufacturing corporation may take the shares of an- that that contract is for any reason illegal or void. other in payment of a debt. Chapman, J., in de- | Numerous cases are found in which the courts have livering the opinion of the court, in commenting refused to execute contracts that were ultra vires, upon the case of Treadwell v. Salisbury Manuf'g Co., but this action is not based upon sucli a contract. supra, says that while corporations quasi public The courts will not permit the plea of ultra vires, may be restrained and directed in the management but this action is not based upon such a contract. of their affairs, yet corporations established for the courts will not permit the plea of ultra vires to trading and manufacturing purposes may wind up prevail whether interposed for or against a corpora. their affairs whenever they think proper to do so, tion, where it would not advance justice, but would and in the manner adopted in that case. The legal- | accomplish a legal wrong. Rider Life Raft Co. v. ity of the transaction could not have depended on | Roach, 97 N. Y. 373–381; Whitney Arms Co. v. Barthe intention of the corporation to wind up its af- loro, 63 id. 62. To hold that the plaintiff could not fairs immediately. If it had taken the stock in dispose of the stock, would deprive it of the conpayment for goods, or for the sale of a building or sideration received for the transfer of its rollingland, or water power, which it did not want or de mill and material, thus accomplishing a wrong and sired to sell, while it still carried on its business, the not advancing justice. Our conclusions are that it act must have been equally legal.' In Hodges v. had title to the stock, and that consequently there New England Screro Co., 1 R. I. 312, 347, facts are was a valuable consideration for the note in suit." presented which in many respects are similar to those under consideration. Green, C, J., says: Nor have we any doubt that the screw company In Conlon v. Markey, New York Court of Commight have rightfully taken this stock in the iron mon Pleas, General Term, April 20, 1891, 38 N. Y. company in payment for their rolling-mill, if it had St. Rep. 173, while plaintiff was living with defendbeen taken with a view to sell again, and not per- ant, she requested the secretary of the savings bank manently hold it. Again, it is to be observed, the ! where her moneys were deposited to put defendant's

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name on her book. He asked if she wanted it in her life and the money converted to her own use trust or for either to draw, and explained that if it would not change the legal effect of her act, but the was in trust she would have control of it as long act and intent to do the act had been established. as she lived, and at her death it would go to de- | It was not as in the case of Weber, where a confendant. On her replying that that was what she trary intent was conclusively proved. In the later wanted, he wrote the words “in trust for Patrick case of Willis v. Smyth, 91 N. Y. 301, the question Markey" after her name. Held, that there was no of intent to create a trust is the controlling considintention on plaintiff's part to create a trust, but eration, and such intent is gathered from the lanonly to make a species of testamentary disposition guage employed and all the circumstances of the of the fund, and hence no trust was created by this And so in Mabie v. Bailey, 95 N. Y. 206, the transaction; and that as defendant understood that case of Martin v. Funk was interpreted as deciding no transfer of the fund to him was intended, the that a deposit in form in trust for another constidelivery of the pass-book to him did not constitute tuted a trust, and, unexplained, operated to transan assignment of the deposit to him. Daly, C. J., fer the beneficial interest in the deposit to the benesaid: “To create a trust it is necessary that there ficiary named; and it was said by the court, per should be an intention on the part of the donor to Andrews, J.: 'If it was now necessary to decide part with all interest in the subject of the trust, and that point I should incline to the opinion that the to vest the title in another by some act sufficient to character of such a transaction as creating a trust is pass the title. The question of intent controls. In not conclusively established by the mere fact of the Weber v. Weber, 58 How. Pr. 256, where a depositor in deposit so as to preclude evidence of contemporaa savings bank opened several accounts in his name neous facts and circumstances constituting res gesto in trust for his children, but did so only in order to to show that the real motive of the depositor was receive the highest rate of interest, and without any not to create a trust, but to accomplish some indeintention of parting with the ownership of the pendent and different purpose inconsistent with an money, or of making a gift or transfer of it to his intention to divest himself of the beneficial ownerchildren, it was held by the Supreme Court (Van ship of the fund.'” Vorst, J.) that no trust was established. The court said that the question whether a voluntary trust is created or not is a question of fact in the case, and

NOMINATIONS FOR JUDGES. the court in determining the fact will give effect to the purposes or objects which the settlor had in As the time approaches for nominating candidates

for judges we notice in some parts of the State an view in making the disposition. Quoting Lord

Quoting Lord outcry against the renomination of judges who cannot Cranworth (in Jones v. Lock, L. R., 1 Ch. App. 25), serve fourteen years before reaching seventy is becom

None that we can imagine is more *the case turns upon the short question whether the ing inteusified. father intended to make a declaration that he held

senseless. We have never heard it used by men of in

tegrity and ability. The best justico is the cheapest, the property in trust for the child;' it was held that irrespective of a slightly enhanced price. Those who the intent of the depositor at the time, gathered | clamor loudest and make the most noise against such from his words and acts together with the circum- renominations are the patriots anxious to fill the places stances, must needs be considered to determine the of the judges whose renominations they so vociferously true character of the transaction. The facts in that declaim against, aud their supporters expecting favors

from them as their friends. Such a course does not case closely resemble those before us, the depositor commend them for elevation to a judicial station. acting upon information from the bank clerk that

The argument is little better than an insult to the the money would remain his, no matter in whose intelligence of those to whom it is addressed, shows a name it was deposited. He said he wished to con

want of any sensible reason against the renomination

of the men to whom it is made, and a poor appreciatrol it as long as he lived, but had no objection to

tion of the standard at which the judiciary should be letting his children have it after his death. It was

kept.

. If there is any valid objectiou to candidate held that if a literal construction of the transaction for renomination make it manfully against him. Adas presented by the bank books established an irre-dress the intelligence of the people. vocable trust, the same is the result of a mistake on

There is a reserve of prudence and discretion usually the part of the depositor, to which, in equity, he brought out at a critical moment which turns the scale

An appeal to the reason should not be held. We followed this ruling in an- in favor of a wiser decision.

of the people has never been known to fail in the long other action growing out of the same transaction Our Constitution, the fundamental charter of (Weber v. Weber, 9 Daly, 211), holding that there our protection, recognizes the fact that cases may arise being no intention to part with the ownership of where it is for the best interests of the people to rethe money, nor to make a gift or transfer of it, no

elect an able and experienced judge, and to offer him trust was made or created,

as an inducement against retiring to a lucrative pracBoth of these cases were

tice in his vigor and usefulness a continuance of his decided after Martin v. Funk, 75 N. Y. 134, and salary for a few years after he has ceased to faithfully upon the authority of that case with respect to the serve the public. Such a renomination should not be controlling question of the intent of the donor. In made in a case where reasonable doubts exist as to that case the intent was inferred from the act.

whether a judge of experience or a new candidate is There was no evidence of any other intent. It was

the better, but where there is no reasonable doubt that

the ability and experience of a sitting judge predomisaid that the fact that the depositor may have be- mate there should be no hesitation about securing the lieved that the deposits might be withdrawn during | best wau.

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A reasonably wise client called upon to select coun- Co. are, and were at all the times herein mentioned, sel would not hesitate to take the best and to pay him doing a general wholesale business in Kansas City, in more for bis services than he would one less experienced the State of Missouri, in the sale of intoxicating and less useful. A judge occupies a higher and much liquors; that said Maynard, Hopkins & Co. do a genmore responsible position, and why should not the peo- eral business of packing and shipping intoxicating ple, as a whole, act with as much wisdom as a single liquors from their place of business in Kansas City, iu suitor? If the provisions of the Constitution, adopted the State of Missouri, to various points in the State of wben small and inadequate salaries were paid, staud in Kansas and other States; that in June, 1890, the said the way of the renomination of worthy men, change Maynard, Hopkins & Co. constituted and appointed them as 800n as possible in the proper mode, but do the petitioner herein, Charles Rahrer, a citizen of the not let a few dollars, to be paid to able, competent and United States, their lawful agent in the city of Topeka, experienced men, stand for a moment in the way of in the State of Kansas, to sell and dispose of for them securing the best possible judiciary. It is tbe last re- in original packages liquors shipped by the said Maysource we have for justice and right, and let no dema- nard, Hopkins & Co. from the State of Missouri to Togogic vociferation from interested candidates and peka, iu the State of Kansas; that in July, 1890, the their partizans impede, for a rooment, the best nomi- said Maynard, Hopkins & Co. shipped to the city of Datious.

Topeka, in the State of Kausas, from Kansas City, in
Amend the Constitution, if necessary, but do not in the State of Missouri, a car-load of intoxicating liquors
a single instance lower the standard of the judiciary or packed by them and shipped from Kansas City, in the
let demagogues, appealing personally or by their parti. State of Missouri, in original packages, which car-load
zaus to cupidity for their elevation, for personal ends, of intoxicating liquors 80 shipped was taken charge of
prevail against the good of the public.

by the petitioner herein, Charles Rahrer, at Topeka,
in the State of Kansas, as the agent of Maynard, Hop-
kins & Co.; that on the 9th day of August, 1890, the

said Charles Rahrer, as agent of the said Maynard,
INTOXICATING LIQUORS “WILSON BILLHopkins & Co., offered for sale and sold in the original
- ORIGINAL PACKAGES.

package a portion of said liquor, so shipped by the said
Mayward, Hopkins & Co., to-wit, one pony keg of beer,

being a four-gallon keg, which keg was in the same
UNITED STATES SUPREME COURT, MAY 25, 1891.

condition in which it was shipped from Kansas City,

in the State of Missouri, to Topeka, in the State of
WILKERSON V. RAHRER.

Kansas; that said keg of beer was separate and dis-
The provision of the Federal Constitution vesting in Con- tinct from all other kegs of beer so shipped, and was

gress the exclusive power to regulate inter-State com- shipped as a separate and distinct package by Maynard,
merce does not guarantee the absolute freedom of such

Hopkins & Co., from Kansas City, in the State of Mis-
The “ Wilson Bill ” (Act of Congress, Au-
gust 8, 1890, 26 St. 313), which provides that intoxicating 9th day of August, 1890, offered for sale and sold one

souri; that the petitioner, Charles A. Rahrer, ou the
liquors brought into any State shall be subject to the laws
enacted in the exercise of its police power “to the same

pint of whisky, which was a portion of the liquor
extent and in the same manner as though such liquors shipped by Mayuard, Hopkins & Co., as above stated;
had been produced in such State, and shall not be exempt that said pint of whisky was sold in the same condition
therefrom by reason of being introduced therein in orig- in which it was shipped from the State of Missouri and
inal packages or otherwise,” is not an unconstitutional re- received in the State of Kansas; that it was separate
striction

and distinct from every other package of liquor so
The effect of this law is to subject to the operation of the po- shipped, and was sold in the same package in which it

lice power of the State certain subjects which were there-
tofore excluded from its operation by reason of their be-

Was received, being securely inclosed in a wooden box
ing subjects of inter-State commerce; and it is not a dele-

of sutficient size to hold said pint bottle of whisky. It gation to the States of the power to regulate commerce,

is further agreed that Charles A. Rahrer, the petitioner nor an adoption of State laws as such regulation.

herein, was not the owner of said liquor, but was
The decisions of the Supreme Court that the State prohibitory simply acting as the agent of Maynard, Hopkins & Co.,

laws were not operative on liquors imported and sold in who were the owners of said liquor. That on the 21st
the original packages did not have the effect to annul

day of August, 1890, there was filed in the office of the
those laws, and hence their re-enactment was not neces.

clerk of the District Court of Shawnee county, Kans., sary in order to make them immediately operative upon

an information by R. B. Welch, county attorney of such liquors after the passage of the “ Wilson Bill.”

eaid county, together with affidavit of Otis M. ('apron

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APPEAL. from ribe Circuit Court of the United States and Ino support there is provided and ca tached phe rets;

for the of
This was an application for a writ of habeas corpus

General Statutes of 1889, charging the said Charles A.
made to the Circuit Court of the United States for the Rahrer with violating the Prohibitory Liquor Law of
District of Kansas by Charles A. Rabrer, who alleged

the State of Kansas, by making the two sales hereinin his petition that he was illegally and wrongfully re

before mentioned. A copy of said information and strained of his liberty by John M. Wilkerson, sheriff of

affidavits so filed is attached to the return of the reShawnee county, Kans., in violation of the Coustitu- spondent herein, and is hereby referred to and made tion of the United States. The writ was issued, and

a part hereof. That the petitioner herein, Charles A. returv having been made thereto, the cause was heard Rahrer, was arrested upon a warrant issued upon the on the following agreed statement of facts:

" It is wi

information and affidavit heretofore referred to, aud derstood and agreed by and between the attorneys for

is held in custody by the respondent, John M. Wilker the petitiover herein and the respondent that the above son, sheriff of Shawnee county, by reason of said ivforentitled application to be discharged upon writ of ha

mation so filed and said warrant 80 issued, and not beas corpus shall be heard and decided upon the fol

otherwise. Said Charles A. Rabrer was not a druggist lowing facts, namely: That H. C. Maynard and Lisle

and did not have, por did his principals, Maynard, Hopkins are citizens and residents of the State of Mis Hopkins & Co., have any druggist's permit at the time souri, and are partners doing business at Kausas City,

of making the said sales of intoxicating liquor hereinin the state of Missouri, under the firm name of May.

before mentioned. nor had he or they ever made any pard, Hopkins & Co.; that said Maynard. Hopkius & application for a druggist's permit to the Probate

judge of Shawnee county, Kan.. before making such * S. C., 11 Sup. Ct. Rep. 865, reversing 13 Fed. Rep. 556. sales of intoxicating liquor as aforesaid. The said sales

hot"

of intoxicating liquors were not made by said Charles And this court has uniformly recognized State legislaA. Rahrer upon a printed or written affidavit of the tion, legitimately for police purposes, as not, in the applicant for such intoxicating liquors, as required un- sense of the Constitution, uecessarily infringing upon der the probibitory laws of the State of Kansas. Aany right which has been confided expressly or by imcopy of the warrant under and by virtue of which the plication to the National government. The fourteenth respondent, Jom M. Wilkerson, sheriff of Shawuee amendment, in forbidding a State to make or enforce county, holds tbe said Charles A. Rabrer is attached any law abridging the privileges or immunities of citito the return of the respondent, and is hereby referred zens of the United States, or to deprive any person of to and made a part hereof. The recent act of Congress | life, liberty or property without due process of law, or relating to intoxicating liqu vrs, and known as the to deny to any person within its jurisdiction the equal • Wilson Bill,' was sigued by the president on August | protection of the laws, did not invest, and did not at. 8. A. D. 1890." The Circuit Court discharged the pe- tempt to invest, Congress with power to legislate upon titioner, and the cause was brougnt to this court subjects which are within tbe domain of State legislaby appeal. The opinion will be found iu 43 Fed. Rep. tion. As observed by Mr. Justice Bradley, delivering 556.

the opinion of the court in the Civil Rights Cases, 109 The Constitution of Kansas provides : “ The manu- U. S. 3, 13, the legislation under that amendment canfacture and sale of intoxicating liquors shall be forever properly cover the whole domain of rights apperprohibited in this State, except for medical, scientific taining to life, liberty and property, defining them, and mechanical purposes.” i Gen. St. Kans. 1889, p. and providing for their viudication. That would be to 107. The sections of the Kansas statutes claimed to establish a code of municipal law regulative of all prihave been violated by the petitioner are as follows: vate rights between man and man in society. It would "Any person or persons who shall manufacture, sell or be to make ('ongress take the place of the State Legisbarter any spirituous, malt, vinous, fermented or latures and to supersede them. It is absurd to affirm other intoxicating liquors shall be guilty of a misde- | that, because the rights of life, liberty and property meanor, and punished as hereinafter provided; pro

(which include all civil rights that men have) are by vided however that such liquors may be sold for medi- the amendment sought to be protected against invacal, scientific and mechanical purposes, as provided in

sion on the part of the State without due process of this act. It shall be unlawful for any person or per

law, Congress may therefore provido due process of song to sell or barter for medical, scientific or mechan

law for their vindication in every case; and that beical purposes any malt, vinous, spirituous, fermented cause the denial by a State to any persons of the equal or other intoxicating liquors, without first having pro

protection of the laws is prohibited by the amendment, cured a druggist's permit therefor froin the Probate therefore Congress may establish laws for their equal judge of the county wherein such druggist may be do

protection." In short it is not to be doubted that the ing business at the time," etc. “Any person without

power to make the ordinary regulations of police retaking out and having a permit to sell intoxicating

mains with the individual States, and cannot be asliquors, as provided in this act, or any person not law sumed by the National government, and that in this fully and in good faith eugaged in the business of a

respect it is not interfered with by the fourteenth druggist, who shall directly or indirectly sell or barter amendment. Barbier v. Connolly, 113 U. S. 27, 31. The any spirituous, malt, vinous, fermented or other in

power of Congress to regulate commerce among the toxicating liquors, shall be deemed guilty of a misde

several States, when the subjects of that power are Nameanor, and upon conviction thereof shall be fined in

tional in their nature, is also exclusive. The Constituany eum not less than one hundred dollars nor more

tion does not provide that inter-State commerce shall than five hundred dollars, and be imprisoned in the

be free, but by the grant of this exclusive power to county jail not less than thirty days nor more than regulate it, it was left free except as Congress might ninety days.” 1 Gen. St. Kans.,chap. 31, $$ 380, 381, 386. impose restraint. Therefore it has been determined On August 8, 1890, an act of Congress was approved,

that the failure of Congress to exercise this exolusive entitled "An act to limit the effect of the regulations power in any case is an expression of its will that the of commerce betwern the several States and with for- subject shall be free from restrictions or impositions eign countries in certain cases," which reads as fol

upon it by the several States. Robbins v. Taxing Dist., lows: “That all fermented, distilled or other intoxi. 120 U. S. 489. And if a law passed by a State, in the cating liquors or liquids transported into any State or

exercise of its acknowledged powers, comes into conTerritory, or remaining therein for use, consumption, flict with that will

, the Congress and the State cannot sale or storage therein, shall upon arrival in Buch State

occupy the position of equal opposing sovereignties, or Territory, be subject to the operation and effect of

because the Constitution declares its supremacy, and the laws of such State or Territory enacted in the ex

that of the laws passed in pursuance thereof. Gibbons ercise of its police powers, to the saine extent and in

v. Ogden, 9 Wheat. 210.

That which is not supreme the same manner as though such liquids or liquors had

must yield to that which is supreme. Brown v. Marybeen produced in such State or Territory, and shall | land, 12 Wheat. 448. not be exempt therefrom by reason of being introduced

" Commerce undoubtedly is traffic,” said Chief Justherein in original packages or otherwise."

tice Marshall, “but it is something more; it is inter

26 St. 313.

It describes the commercial intercourse be

tween nations and parts of nations in all its branches, L. B. Kellogg, A. L. Williams, R. B. Welch and J. N. and is regulated by prescribing rules for carrying on Ives, for appellant.

that intercourse." Unquestionably fermented, disLouis J. Blum, Edgar C. Blum and David Overmyer,

tilled or other intoxicating liquors or liquids are subfor appellee.

jects of commercial intercourse, exchange, barter and

traffic between nation and nation, and between State Mi Chief Justice FULLER, after stating the facts as and State, like any other commodity in which a right above, delivered the opinion of the court.

of traffic exists, and are so recognized by the usages of The power of the State to impose restraints and bur- the commercial world, the laws of Congress and the dens upon persons and property in conservation and decisions of courts. Nevertheless it has been often promotiou of the public health, good order and pros held that State legislation which prohibits the mapuperity is a power originally and always belonging to facture of spirituous, malt, vinous, ferviented or other the States, not surrendered to them by the genera intoxicating liquors within the limits of a State, to be government, nor directly restrained by the Constitu- there sold or bartered for general use as a beverage, ion of the United States, and essentially exclusive. does vot necessarily infringe auy right, privilege or im

course.

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