V.

Chapter the court below would require us to decide that the law of Iowa operated in another State so as to invalidate a lawful contract as to interstate commerce made in such other State; and, indeed, would require us to go yet further, and say that, although under the interstate commerce clause a citizen in one State had a right to have merchandise consigned from another State delivered to him in the State to which the shipment was made, yet that such right was so illusory that it only obtained in cases where in a legal sense the merchandise contracted for had been delivered to the consignee at the time and place of shipment." The learned justice further pointed out that to sustain the doctrine of the State court, that wherever merchandise shipped from one State to another is not completely delivered to the buyer at the point of shipment so as to be at his risk from that moment, the movement of such merchandise is not interstate commerce, would operate materially to cripple if not to destroy that freedom of commerce between the States which it was the great purpose of the Constitution to promote; it would prevent the citizen of one State from shipping into another unless he assumed the risk; it would subject contracts made by common carriers and valid by the laws of the State where made to the laws of another State; it would remove from the protection of the interstate commerce clause all goods on consignment upon any condition as to delivery, express or implied; and, besides, it would also render the commerce clause of the Constitution inoperative as to all that vast body of transactions by which the products of the country move in the channels of interstate commerce by means of bills of lading to the shipper's order with drafts for the purchase price

attached, and many other transactions essential to Chapter the freedom of commerce, by which the complete title to merchandise is postponed to the delivery thereof."

INTOXICATING LIQUORS.

The doctrine that a State is without power to prohibit the importation of goods from other States was applied to intoxicating liquors, in the case of Bowman v. Chicago, etc., R. Co. An Iowa statute

See also Norfolk, etc., R. Co. v. Sims, (1903) 191 U. S. 441; Parker v. State, (Tex. Crim. 1905) 85 S. W. Rep. 1155; Sedgwick v. State, (Tex. Crim. 1905) 85 S. W. Rep. 813. But compare State v. O'Neil, (1885) 58 Vt. 140; State v. Intoxicating Liquors, (1886) 58 Vt. 594.

Upon an indictment against an express company for delivering liquor in violation of law, it appeared that the package was shipped C. O. D.; that the consignee had not ordered it, but offered to take it out when he could get the money to pay for it and the charges; and that it was a week before it was finally delivered. In holding that the defendant was properly convicted, the court, in Adams Express Co. v. Com., (Ky. 1905) 87 S. W. Rep. 1111, said: “A failure, therefore, upon their part to immediately that is, in a reasonable and customary time - deliver goods shipped in their charge, or their holding of such goods an unreasonable or unusual time, changes their relations at once from a common carrier to that of ordinary warehouseman. In view of this rule, and under the facts of the case at bar, we must conclude that at the time of delivering to Meece the whiskey in question, and in receiving the price paid by the latter therefor, appellant did not sustain to that article of merchandise, or to the consignor or consignee, the relation of common carrier, but merely that of a bailee or warehouseman, for which reason we are unable to see how it was or could have been protected in the transaction by the law of interstate commerce."

7 (1888) 125 U. S. 465.

In that case, the License Cases, (1847) 5 How. (U. S.) 504, were reviewed. The question in those cases was whether certain statutes of Massachusetts, Rhode Island, and New Hampshire, relating to the sale of spirituous liquors were valid. The statutes of Massachusetts and Rhode Island had reference to the sale within those States respectively of intoxicating liquor imported from foreign countries,

States withity to pro

out author

hibit importation.

Prohibiting transporta

tion.

Chapter attempted to forbid common carriers from bringing intoxicating liquors into the State of Iowa from another State or Territory without obtaining a certificate required by the laws of Iowa. In holding that the statute was a regulation directly affecting commerce in an essential and vital point, the court, through Mr. Justice Matthews, said that the statute "seeks to prohibit and stop their passage and importation into its own limits, and is designed as a regulation for the conduct of commerce before the merchandise is brought to its border. It is not one of those local regulations designed to aid and facilitate commerce; it is not an inspection law to secure the due quality and measure of a commodity; it is not a law to regulate or restrict the sale of an article deemed injurious to the health and morals of the community; it is not a regulation confined to the purely internal and domestic commerce of the State; it is not a restriction which only operates upon property after it has become mingled with and forms part of the mass of the property within the State.'

Prohibiting sale of imported liquors.

Another feature of the Iowa prohibitory law, which prohibited the sale of intoxicating liquors except by persons holding permits authorizing them to sell and dispense liquors for pharmaceutical and medicinal purposes, and alcohol for specified chemical purposes, and wine for sacramental purposes, but for no other purposes whatever, came in for but not sold or offered for sale within the State by the importer in original packages. The statute of New Hampshire, however, applied to intoxicating liquor imported from another State, and the decision in that case upheld its validity in reference to the disposition by sale or otherwise of the intoxicating liquor after it had been brought into the State. This last case was in effect overruled by the Bowman v. Chicago, etc., R. Co.'s case.

V.

judicial condemnation, in Leisy v. Hardin, as ap- Chapter plied to liquors imported from another State and held for sale in the original packages; wherein Chief Justice Fuller, referring to cases sustaining the power of the State to control manufacture and sale within the State, said in the opinion written for the court: "These decisions rest upon the undoubted right of the States of the Union to control their purely internal affairs, in doing which they exercise powers not surrendered to the national government; but whenever the law of the State amounts essentially to a regulation of commerce with foreign nations or among the States, as it does when it inhibits, directly or indirectly, the receipt of an imported commodity or its disposition before it has ceased to become an article of trade between one State and another, or another country and this, it comes in conflict with a power which, in this particular, has been exclusively vested in the general government, and is therefore void.""

8 (1890) 135 U. S. 100.

Followed by Lyng v. Michigan, (1890) 135 U. S. 161. See Kidd v. Pearson, (1888) 128 U. S. 1, referred to supra, p. 111.

See also Ex p. Jervey, (1895) 66 Fed. Rep. 957; Jervey v. The Carolina, (1895) 66 Fed. Rep. 1013; State v. Intoxicating Liquors, (1900) 94 Me. 335.

The fact that the shipper is a resident of the State and that the contract was executed in the State, does not take a transaction out of interstate commerce and make it a State transaction when the shipper's place of business is in another State and the products are there manufactured and shipped. Sloman v. William D. C. Moebs Co., (1905) 139 Mich. 334.

Liquor which has been manufactured by the citizens of a State in the State, sent out of the State, and then shipped back into the State for the express purpose of evading the prohibition laws of the State, never became a subject of interstate commerce. Crigler v. Com., (Ky. 1905) 87 S. W. Rep. 276.

The application of the doctrine that a State is without power to prohibit the importation of goods from other States has been modified

Chapter
V.

CIGARETTES.

In the case of cigarettes, a statute of Tennessee provided that it shall be a misdemeanor for any person, firm, or corporation to sell, offer to sell, or to bring into the State for the purpose of selling, giving away, or otherwise disposing of, any cigarettes, cigarette paper, or substitute for the same." Upon sustaining a conviction for a sale of cigarettes in violation of the statute, the State Supreme Court placed its decision upon two grounds: First, that cigarettes are not legitimate articles of commerce; second, that the sale shown to have been made was not the sale of an original package in the true commercial sense.

2

The Supreme Court of the United States, in Austin v. Tennessee, affirmed the judgment of the State court upon the second ground stated, which is discussed in another part of this work, but as to the first ground, that cigarettes are not legitimate articles of commerce, Mr. Justice Brown, writCigarettes ing the opinion of the court, said: "We are not

as legiti

mate articles of commerce.

prepared to fully indorse the opinion of that court upon the first point. Whatever product has from time immemorial been recognized by custom or law as a fit subject for barter or sale, particularly if its manufacture has been made the subject of federal regulation and taxation, must, we think, be recognized as a legitimate article of commerce although it may to a certain extent be within the police power of the States. Of this class of cases is tobacco.

by federal statutes, as applied to intoxicating liquors and imitation dairy products. See infra, p. 143.

1 (1900) 179 U. S. 343.

2 See supra, p. 123.