Imágenes de páginas
PDF
EPUB

feeling of relief to the judgment which he may be able to form by the sterling honesty of his own intellect."

Men who are capable of writing such words as these are capable even of tending toward codification, perhaps of leading the Virginia Bar Association in those arduous paths which extend forward and upward to the stars.

[ocr errors]

We have heretofore called the attention of our readers to the novel experiment in reporting, which Sir Frederick Pollock is conducting in England, under the description of the "Revised Reports, The Law Times announces the near publication of the first two volumes of the series and gives some additional information relative to the enterprise. It appears that the work so auspiciously commenced by Pollock was planned as far back as 1863, by Lord Westbury. The main point about these reports is, that they are to be "an edition and not a selection, and will be formed, not by choosing for republication those cases which the editors deem important or instructive, but by omitting such cases and parts of cases as appear to be clearly not important for the current study and practice of the law." "The decisions," it is added, "will be treated, not as plaintiffs having to make out the merits of their claim, but as defendants with the benefit of possession. Judgments will not be abridged except, on occasion, as to statements of facts (a discretion constantly used by reporters themselves), and except where the case is retained only for the sake of one or more definite points out of those dealt with at the time; but a comparatively free hand will be used in retrenching prolix reports of arguments. Head-notes, which are strictly no part of the report, will be corrected and revised as often as it appears useful." The work appears to be dealt with in an intelligent, comprehensive and, at the same time, conservative spirit. As for the saving of space, our learned contemporary estimates that six hundred and twentyseven volumes of existing reports "can be rolled into fifty volumes of the revised."

[ocr errors]

this may be said to take the cake. The convenience of it is most admirable, since, like a 'flying point' at whist, it may be taken advantage of at any moment. At present, when one has murdered somebody, and got off on the ground of insanity, there is still the unpleasantuess of being confined during the queen's pleasure' afterward; but the beauty of the petit mal is that a person may have only one or two attacks of it 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 cut the throats of at least two persons, without fear (to ourselves, which is the main point) of future consequences. This reflection, to those who are so fortunate as to have only a couple of enemies in the world, will, as Mr. Pecksniff says, be very soothing.'"

NOTES OF CASES.

N Holmes, etc., Manuf'g Co. v. Holmes, etc., Metal
ion, June 2, 1891, 38 N. Y. St. Rep. 155, plaintiff, a
domestic corporation, sold its stock and plant to the
defendant company, and took in part payment stock
of the defendant company. Subsequently a con-
tract was made by which plaintiff agreed to sell the
stock to the defendant, the same to be delivered
upon the payment of certain promissory notes given
in payment therefor. In an action on one of the
promissory notes, held, that the title to the stock
vested in the plaintiff company, and that there was
a valuable consideration for the note in suit. The
court said: "It is doubtless true that a corporation
cannot purchase or deal in stocks of other corpora-
tions unless expressly authorized by law so to do.
Talmage v. Pell, 7 N. Y. 328; Berry v. Yates, 24
Barb. 200; Milbank v. New York, L. E. & W. R.
Co., 64 How. 20; Mechanics' Mut. Sav. Bank v. Meri-
den Agency Co., 24 Conn. 159; Central R. Co. v.
Pennsylvania R. Co., 31 N. J. Eq. 475; Hazlehurst v.
Savannah R. Co., 43 Ga. 57; Valley R. Co. v. Lake
Erie Iron Co. (Ohio), 18 N. E. Rep. 486; People v.
Chicago Gas Trust Co., 130 Ill. 268-284; Franklin
Co. v. Lewiston Institution for Savings, 68 Me. 48;
Hill v. Nisbet, 100 Ind. 341-349. It is equally true
however that it may do whatever may be necessary
in the exercise of its corporate franchises. The sell-

It would appear that the petit mal, of which Mr.
James Payn makes so much fun in a recent numbering of property and collection of debts is among the

of The Independent, is only our old friend "Emotional Insanity" in a new dress. The description of this malady recalls to our minds a long series of murder trials in this country in which the plea has been successfully employed, especially in cases where the emotion producing the insanity was caused by a husband's discovery of his wife and her paramour in flagrante delicto. Indeed we are not at all certain that the plea of emotional insanity has outlived its usefulness yet in such cases. Mr. Payn's account is the unsophisticated version of a transatlantic mind:

powers given, and hence it may take title to all kinds of property, even the stock of another company, in the payment of a debt. Talmage v. Pell, The statute under supra, and cases above cited. which the plaintiff was incorporated provides that 'it shall not be lawful for such company to use any of their funds in the purchase of any stock in any other corporation. Laws 1848, chap. 40, § 8. The funds here spoken of evidently mean the money of the company, and the statute was not intended to limit the powers of the corporation beyond that already indicated. The plaintiff was a private manufacturing corporation. It exercises no powers of a "It is, it seems, according to a medical witness in a public nature, and has attempted no combination 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 affectAs a plea of insanity, when one is in trouble for homicide, ing public policy to be considered. The purpose of

directors were not investing the funds of the screw company in the stock of the iron company. They had on hand an unsalable rolling-mill, and they owed a heavy debt for it, and one great object in taking the stock in the iron company was to realize for the rolling-mill, and in part pay thereby the debt.' State of Kansas v. Western Irrigating Canal Co., 40 Kans. 96; Leathers v. Janney, 41 La. Ann. 1120; Hibernia Ins. Co. v. St. Louis & New Orleans Transportation Co., 13 Fed. Rep. 516; Taylor v. North Star Gold Mining Co., 79 Cal. 285; Miner's Ditch Co. v. Zellerbach, 37 id. 543; State v. Butler, 86 Tenn. 614; Moraw. Priv. Corp., § 212. The plaintiff has sold its rolling-mill, machinery, etc., to the defendant. It has taken stock in the latter company in payment therefor. Inasmuch as this was done with the consent of all of the stockholders, it being the act of a private corporation, not in any manner harming the public, we see no reason for

the company is expressed in a preamble to the resolutions adopted authorizing the sale of its plant and stock of materials on hand to the defendant company. It was, in short, to increase the business of the stockholders by adding to the manufacture of brass that of German silver and nickel alloys. The scheme adopted was the organization of a new corporation, bringing in some other persons with additional capital. The stock in the new company was subscribed for by Holmes and Edwards individually, and the stock when finally issued was issued to Edwards. It is true he takes it as trustee, and holds it as such for the plaintiff, but this we do not regard as necessarily ultra vires. The plaintiff had the right, with the consent of its stockholders, to sell its plant and retire from business, and it appears from the evidence in this case that the consent of all the stockholders was given to the sale that was made. In Kent v. Quicksilver Mining Co., 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 acts which affect the public to its harm, inasmuch as they are per se illegal, or are malum prohibitum. Then no assent of stockholders can validate them. It may do acts not thus illegal, though there is want of power to do them, which affect only the interest of the stockholders. They may be made good by the assent of the stockholders, so that strangers to the stockholders, dealing in good faith with the corporation, will be protected in a reliance upon those acts.' In the case of Treadwell v. Salisbury Manuf'g Co., 7 Gray, 393-405, it was held that the directors of a manufacturing corporation may sell the whole property of the corporation to a new corporation, taking payment in shares of stock of the new company, to be distributed among the stockholders of the old company. In Howe v. Boston Carpet Co., 16 Gray, 493, it was held that one manufacturing corporation may take the shares of another in payment of a debt. Chapman, J., in delivering the opinion of the court, in commenting upon the case of Treadwell v. Salisbury Manuj'g Co., supra, says that while corporations quasi public may be restrained and directed in the management of their affairs, yet corporations established for trading and manufacturing purposes may wind up their affairs whenever they think proper to do so, and in the manner adopted in that case. The legality of the transaction could not have depended on the intention of the corporation to wind up its affairs immediately. If it had taken the stock in payment for goods, or for the sale of a building or land, or water power, which it did not want or desired to sell, while it still carried on its business, the act must have been equally legal.' In Hodges v. New England Screw Co., 1 R. I. 312, 347, facts are presented which in many respects are similar to those under consideration. Green, C. J., says: 'Nor have we any doubt that the screw company might have rightfully taken this stock in the iron company in payment for their rolling-mill, if it had been taken with a view to sell again, and not permanently hold it. Again, it is to be observed, the

Palmer v. Cypress Hill Cemetery, 122 N. Y. 429-435. But assuming the transaction to have been ultra vires, the defense interposed would still be unavailable. The plaintiff has the stock, and has paid for it. It cannot be recovered back by the defendant, for the transaction is completed and closed. Whilst the contract remained executory, if it was unauthorized, a stockholder or person interested might have interfered by injunction, and prevented the transfer of the property of the plaintiff to the defendant. But the contract having become executed, the title of the stock now vests in the plaintiff, and it has the power to sell and dispose of the same. Sistare v. Best, 88 N. Y. 527-533; Milbank v. New York, L. E. & W. R. Co., supra. The contract under which the note in suit was given was made in December, 1884, nearly four years after the plaintiff became the owner of the stock. No claim is made that that contract is for any reason illegal or void. Numerous cases are found in which the courts have refused to execute contracts that were ultra vires, but this action is not based upon such a contract. The courts will not permit the plea of ultra vires, but this action is not based upon such a contract. The courts will not permit the plea of ultra vires to prevail whether interposed for or against a corpora... tion, where it would not advance justice, but would | accomplish a legal wrong. Rider Life Raft Co. v. Roach, 97 N. Y. 373-381; Whitney Arms Co. v. Barlow, 63 id. 62. To hold that the plaintiff could not dispose of the stock, would deprive it of the consideration received for the transfer of its rollingmill and material, thus accomplishing a wrong and not advancing justice. Our conclusions are that it had title to the stock, and that consequently there was a valuable consideration for the note in suit."

In Conlon v. Markey, New York Court of Common Pleas, General Term, April 20, 1891, 38 N. Y. St. Rep. 173, while plaintiff was living with defendant, she requested the secretary of the savings bank where her moneys were deposited to put defendant's

name on her book.

He asked if she wanted it in trust or for either to draw, and explained that if it was in trust she would have control of it as long as she lived, and at her death it would go to defendant. On her replying that that was what she wanted, he wrote the words "in trust for Patrick Markey" after her name. Held, that there was no intention on plaintiff's part to create a trust, but only to make a species of testamentary disposition of the fund, and hence no trust was created by this transaction; and that as defendant understood that no transfer of the fund to him was intended, the delivery of the pass-book to him did not constitute an assignment of the deposit to him. Daly, C. J., said: "To create a trust it is necessary that there should be an intention on the part of the donor to part with all interest in the subject of the trust, and to vest the title in another by some act sufficient to pass the title. The question of intent controls. In Weber v. Weber, 58 How. Pr. 256, where a depositor in a savings bank opened several accounts in his name in trust for his children, but did so only in order to receive the highest rate of interest, and without any intention of parting with the ownership of the money, or of making a gift or transfer of it to his children, it was held by the Supreme Court (Van 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 the court in determining the fact will give effect to S the time approaches for nominating candidates the purposes or objects which the settlor had in A for judges we notice in some parts of the State an view in making the disposition. 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'the case turns upon the short question whether the ing intensified. None that we can imagine is more senseless. We have never heard it used by men of infather intended to make a declaration that he held tegrity and ability. The best justice 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 declaim against, and their supporters expecting favors true character of the transaction. The facts in that from them as their friends. Such a course does not commend them for elevation to a judicial station.

her life and the money converted to her own use would not change the legal effect of her act, but the act and intent to do the act had been established. It was not as in the case of Weber, where a contrary intent was conclusively proved. In the later case of Willis v. Smyth, 91 N. Y. 301, the question of intent to create a trust is the controlling consideration, and such intent is gathered from the language employed and all the circumstances of the case. And so in Mabie v. Bailey, 95 N. Y. 206, the case of Martin v. Funk was interpreted as deciding that a deposit in form in trust for another constituted a trust, and, unexplained, operated to transfer the beneficial interest in the deposit to the beneficiary named; and it was said by the court, per Andrews, J.: 'If it was now necessary to decide that point I should incline to the opinion that the character of such a transaction as creating a trust is not conclusively established by the mere fact of the deposit so as to preclude evidence of contemporaneous facts and circumstances constituting res gestæ to show that the real motive of the depositor was not to create a trust, but to accomplish some independent and different purpose inconsistent with an intention to divest himself of the beneficial ownership of the fund.'"

NOMINATIONS FOR JUDGES.

case closely resemble those before us, the depositor
acting upon information from the bank clerk that
the money would remain his, no matter in whose
name it was deposited. He said he wished to con-
trol it as long as he lived, but had no objection to
letting his children have it after his death. It was
held that if a literal construction of the transaction
as 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
the part of the depositor, to which, in equity, he
should not be held. We followed this ruling in an-
other action growing out of the same transaction
(Weber v. Weber, 9 Daly, 211), holding that there
being no intention to part with the ownership of
the money, nor to make a gift or transfer of it, no
trust was made or created. Both of these cases were
decided after Martin v. Funk, 75 N. Y. 134, and
upon the authority of that case with respect to the
controlling question of the intent of the donor. In
that case the intent was inferred from the act.
There was no evidence of any other intent. It was
said that the fact that the depositor may have be-
lieved that the deposits might be withdrawn during

The argument is little better than an insult to the intelligence of those to whom it is addressed, shows a want of any sensible reason against the renomination of the men to whom it is made, and a poor appreciation of the standard at which the judiciary should be kept. If there is any valid objection to a candidate for renomination make it manfully against him. Ad

There is a reserve of prudence and discretion usually brought out at a critical moment which turns the scale in favor of a wiser decision. An appeal to the reason of the people has never been known to fail in the long run. Our Constitution, the fundamental charter of our protection, recognizes the fact that cases may arise where it is for the best interests of the people to reelect an able and experienced judge, and to offer him as an inducement against retiring to a lucrative practice in his vigor and usefulness a continuance of his salary for a few years after he has ceased to faithfully serve the public. Such a renomination should not be made in a case where reasonable doubts exist as to whether a judge of experience or a new candidate is the better, but where there is no reasonable doubt that the ability and experience of a sitting judge predominate there should be no hesitation about securing the best man.

[ocr errors]

Co. are, and were at all the times herein mentioned, doing a general wholesale business in Kansas City, in the State of Missouri, in the sale of intoxicating liquors; that said Maynard, Hopkins & Co. do a general business of packing and shipping intoxicating liquors from their place of business in Kansas City, in the State of Missouri, to various points in the State of Kansas and other States; that in June, 1890, the said Maynard, Hopkins & Co. constituted and appointed the petitioner herein, Charles Rahrer, a citizen of the United States, their lawful agent in the city of Topeka, in the State of Kansas, to sell and dispose of for them in original packages liquors shipped by the said May

A reasonably wise client called upon to select counsel would not hesitate to take the best and to pay him more for bis services than he would one less experienced and less useful. A judge occupies a higher and much more responsible position, and why should not the people, as a whole, act with as much wisdom as a single suitor? If the provisions of the Constitution, adopted when small and inadequate salaries were paid, stand in the way of the renomination of worthy men, change them as soon as possible in the proper mode, but do not let a few dollars, to be paid to able, competent and experienced men, stand for a moment in the way of securing the best possible judiciary. It is the last resource 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 their partizans impede, for a moment, the best nominations.

peka, in the State of Kansas; that in July, 1890, the said Maynard, Hopkins & Co. shipped to the city of Topeka, in the State of Kausas, from Kansas City, in the State of Missouri, a car-load of intoxicating liquors packed by them and shipped from Kansas City, in the

Amend the Constitution, if necessary, but do not in
a single instance lower the standard of the judiciary or
let demagogues, appealing personally or by their parti-State of Missouri, in original packages, which car-load
zans to cupidity for their elevation, for personal ends,
prevail against the good of the public.

of intoxicating liquors so shipped was taken charge of by the petitioner herein, Charles Rahrer, at Topeka, in the State of Kansas, as the agent of Maynard, Hopkins & Co.; that on the 9th day of August, 1890, the said Charles Rahrer, as agent of the said Maynard,

INTOXICATING LIQUORS" WILSON BILL" Hopkins & Co., offered for sale and sold in the original

- ORIGINAL PACKAGES.

UNITED STATES SUPREME COURT, MAY 25, 1891.

WILKERSON V. RAHRER.

The provision of the Federal Constitution vesting in Con-
gress the exclusive power to regulate inter-State com-
merce does not guarantee the absolute freedom of such
commerce. The Wilson Bill" (Act of Congress, Au-
gust 8, 1890, 26 St. 313), which provides that intoxicating
liquors brought into any State shall be subject to the laws
enacted in the exercise of its police power "to the same
extent and in the same manner as though such liquors
had been produced in such State, and shall not be exempt
therefrom by reason of being introduced therein in orig-
inal packages or otherwise," is not an unconstitutional re-
striction

The effect of this law is to subject to the operation of the po-
lice power of the State certain subjects which were there-
tofore excluded from its operation by reason of their be-
ing subjects of inter-State commerce; and it is not a dele-
gation to the States of the power to regulate commerce,
nor an adoption of State laws as such regulation.
The decisions of the Supreme Court that the State prohibitory
laws were not operative on liquors imported and sold in
the original packages did not have the effect to annul
those laws, and hence their re-enactment was not neces-
sary in order to make them immediately operative upon
such liquors after the passage of the Wilson Bill."

AP

PPEAL from the Circuit Court of the United States
for the District of Kansas.

This was an application for a writ of habeas corpus made to the Circuit Court of the United States for the District of Kansas by Charles A. Rahrer, who alleged in his petition that he was illegally and wrongfully restrained of his liberty by John M. Wilkerson, sheriff of Shawnee county, Kans., in violation of the Constitution of the United States. The writ was issued, and return having been made thereto, the cause was heard ou the following agreed statement of facts: It is understood and agreed by and between the attorneys for the petitioner herein and the respondent that the above entitled application to be discharged upon writ of habeas corpus shall be heard and decided upon the following facts, namely: That H. C. Maynard and Lisle Hopkins are citizens and residents of the State of Missouri, and are partners doing business at Kansas City, in the state of Missouri, under the firm name of May nard, Hopkins & Co.; that said Maynard, Hopkins &

*S. C., 11 Sup. Ct. Rep. 865, reversing 43 Fed. Rep. 556.

package a portion of said liquor, so shipped by the said Maynard, Hopkins & Co., to-wit, one pony keg of beer, being a four-gallon keg, which keg was in the same condition in which it was shipped from Kansas City, in the State of Missouri, to Topeka, in the State of Kansas; that said keg of beer was separate and distinct from all other kegs of beer so shipped, and was shipped as a separate and distinct package by Maynard, Hopkins & Co., from Kansas City, in the State of Missouri; that the petitioner, Charles A. Rahrer, on the 9th day of August, 1890, offered for sale and sold one pint of whisky, which was a portion of the liquor shipped by Maynard, Hopkins & Co., as above stated; that said pint of whisky was sold in the same condition in which it was shipped from the State of Missouri and received in the State of Kansas; that it was separate and distinct from every other package of liquor so shipped, and was sold in the same package in which it was received, being securely inclosed in a wooden box of sufficient size to hold said pint bottle of whisky. It is further agreed that Charles A. Rahrer, the petitioner herein, was not the owner of said liquor, but was simply acting as the agent of Maynard, Hopkins & Co., who were the owners of said liquor. That on the 21st day of August, 1890, there was filed in the office of the clerk of the District Court of Shawnee county, Kans., an information by R. B. Welch, county attorney of said county, together with affidavit of Otis M. Capron and John C. Butcher appended and attached thereto, and in support thereof, taken under paragraph 2543, General Statutes of 1889, charging the said Charles A. Rahrer with violating the Prohibitory Liquor Law of the State of Kansas, by making the two sales hereinbefore mentioned. A copy of said information and affidavits so filed is attached to the return of the respondent herein, and is hereby referred to and made a part hereof. That the petitioner herein, Charles A. Rahrer, was arrested upon a warrant issued upon the information and affidavit heretofore referred to, and is held in custody by the respondent, John M. Wilker son, sheriff of Shawnee county, by reason of said information so filed and said warrant so issued, and not otherwise. Said Charles A. Rahrer was not a druggist and did not have, nor did his principals, Maynard, Hopkins & Co., have any druggist's permit at the time of making the said sales of intoxicating liquor hereinbefore mentioned, nor had he or they ever made any application for a druggist's permit to the Probate judge of Shawnee county, Kan., before making such sales of intoxicating liquor as aforesaid. The said sales

A

of intoxicating liquors were not made by said Charles
A. Rahrer upon a printed or written affidavit of the
applicant for such intoxicating liquors, as required un-
der the prohibitory laws of the State of Kansas.
copy of the warrant under and by virtue of which the
respondent, John M. Wilkerson, sheriff of Shawnee
county, holds the said Charles A. Rahrer is attached
to the return of the respondent, and is hereby referred
to and made a part hereof. The recent act of Congress
relating to intoxicating liquors, and known as the
'Wilson Bill,' was signed by the president on August
8. A. D. 1890." The Circuit Court discharged the pe-
titioner, and the cause was brought to this court
by appeal. The opinion will be found in 43 Fed. Rep.
556.

And this court has uniformly recognized State legislation, legitimately for police purposes, as not, in the sense of the Constitution, necessarily infringing upon any right which has been confided expressly or by implication to the National government. The fourteenth amendment, in forbidding a State to make or enforce any law abridging the privileges or immunities of citizens of the United States, or to deprive any person of life, liberty or property without due process of law, or to deny to any person within its jurisdiction the equal protection of the laws, did not invest, and did not attempt to invest, Congress with power to legislate upon subjects which are within the domain of State legislation. As observed by Mr. Justice Bradley, delivering the opinion of the court in the Civil Rights Cases, 109 U. S. 3, 13, the legislation under that amendment cannot "properly cover the whole domain of rights appertaining to life, liberty and property, defining them, and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State Legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty and property (which include all civil rights that men have) are by the amendment sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case; and that because the denial by a State to any persons of the equal protection of the laws is prohibited by the amendment, therefore Congress may establish laws for their equal protection." In short it is not to be doubted that the power to make the ordinary regulations of police remains with the individual States, and cannot be as

The Constitution of Kansas provides: "The manufacture and sale of intoxicating liquors shall be forever prohibited in this State, except for medical, scientific and mechanical purposes." 1 Gen. St. Kans. 1889, p. 107. The sections of the Kansas statutes claimed to have been violated by the petitioner are as follows: "Any person or persons who shall manufacture, sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors shall be guilty of a misdemeanor, and punished as hereinafter provided; provided however that such liquors may be sold for medical, scientific and mechanical purposes, as provided in this act. It shall be unlawful for any person or persons to sell or barter for medical, scientific or mechanical purposes any malt, vinous, spirituous, fermented or other intoxicating liquors, without first having procured a druggist's permit therefor from the Probate judge of the county wherein such druggist may be doing business at the time," etc. "Any person without taking out and having a permit to sell intoxicating liquors, as provided in this act, or any person not law-sumed by the National government, and that in this fully and in good faith engaged in the business of a druggist, who shall directly or indirectly sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars, and be imprisoned in the county jail not less than thirty days nor more than ninety days." 1 Gen. St. Kans., chap. 31, §§ 380, 381, 386. On August 8, 1890, an act of Congress was approved, entitled "An act to limit the effect of the regulations of commerce between the several States and with foreign countries in certain cases,' " which reads as follows: "That all fermented, distilled or other intoxicating liquors or liquids transported into any State or Territory, or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory, be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise." 26 St. 313.

L. B. Kellogg, A. L. Williams, R. B. Welch and J. N. Ives, for appellant.

Louis J. Blum, Edgar C. Blum and David Overmyer, for appellee.

Mi Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.

The power of the State to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order and prosperity is a power originally and always belonging to the States, not surrendered to them by the genera government, nor directly restrained by the Constituion of the United States, and essentially exclusive.

respect it is not interfered with by the fourteenth amendment. Barbier v. Connolly, 113 U. S. 27, 31. The power of Congress to regulate commerce among the several States, when the subjects of that power are National in their nature, is also exclusive. The Constitution does not provide that inter-State commerce shall be free, but by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraint. Therefore it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several States. Robbins v. Taxing Dist., 120 U. S, 489. And if a law passed by a State, in the exercise of its acknowledged powers, comes into conflict with that will, the Congress and the State cannot occupy the position of equal opposing sovereignties, because the Constitution declares its supremacy, and that of the laws passed in pursuance thereof. Gibbons v. Ogden, 9 Wheat. 210. That which is not supreme must yield to that which is supreme. Brown v. Maryland, 12 Wheat. 448.

"Commerce undoubtedly is traffic," said Chief Justice Marshall, "but it is something more; it is intercourse. It describes the commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse." Unquestionably fermented, distilled or other intoxicating liquors or liquids are subjects of commercial intercourse, exchange, barter and traffic between nation and nation, and between State and State, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress and the decisions of courts. Nevertheless it has been often held that State legislation which prohibits the manufacture of spirituous, malt, vinous, fermented or other intoxicating liquors within the limits of a State, to be there sold or bartered for general use as a beverage, does not necessarily infringe any right,privilege or im

« AnteriorContinuar »