Moog v. State

SIMPSON, J. .The defendant in this case'was convicted under an indictment charging that defendant “did solieiot an order * * * for spirituous, vinous or malt, liquors to be shipped or sent into” a district in which the sale of such liquors was prohibited. The case was tried upon an agreed statement of facts, which showed that the defendant, as a traveling ^desman, representing a house in Pensacola, Florida, solicited and received an order from one Luke Sawyer -in Monroe county, Alabama, Avhich is a prohibition county, for Avliiskey for the personal use of said SaAAryer; that said order Avas transmitted by defendant to said house in Pensacola, and no money was demanded or receiAred by defendant. The defense, raised in various Avays, is that Sec. 5087 of the Code of 1896, in so far as it applies to a non-resident, traveling and soliciting orders for a non-resident dealer, is violative of the inter-state commerce clause of the Constitution of the United States. This clause has been the subject of a large number of decisions by’the Supreme Court of the United States, and of many very able dissenting opinions. So, whatever may be our opinion upon the points raised, it is important to keep in vicAv, simply the points decided by that able tribunal and try to conform our decisions thereto, and to avoid, as far as possible, confusing the issue by too numerous' an extensive citation of authorities. The clause in question reserves to the Congress of the United States the poAver “To regulate commerce Avith foreign nations, and among the several States and with the Indian tribes.” — Const. U. S. Art, I, Sec. 8. [87] It was early held that this power to- regulate commerce, included not only the means and manner of transportation, and the keping open of free communication between the people, but also the subjects of commerce, and it was said “since the passage of the embargo and non-intercourse laws, and the repeated judicial sanctions those statutes have received, it can scarcely, a,t this day be open to doubt that every subject falling within the legitimate sphere of commercial regulation may be partially or wholly excluded, * * * it may operate on any and every subject of commerce.to which the legislative discretion may apply it.” — U. S. v. Marigold, 9 How. 560, 566-7. In the Robbins case and others which followed on the “drummer tax” question, it is decided; first, that the power of congress to regulate commerce between the states is exclusive; second, that the failure of congress to make any express regulation in regard to any subject, indicates its will that the subject shall be -left free from any restrictions or impositions; third, that the fact of the right to unrestricted commerce on any subject necessarily carries.with it the right of the citizen of one state, either by himself or agent, to go into the other state and solicit business. An exception was also made in favor of the police power of the state to provide for the security of the lives, health and comfort of its citizens, and, among other things mentioned, as illustrations is that of regulating or restricting the sale of articles deemed injurious to the health or morals of the community. This power is then qualified with the restriction that, in exercising this police power, no taxes-can be imposed upon persons, passing through the state, nor upon property imported, so long as it is in the original package, and “no regulation can be made directly affecting inter-state commerce.”. — Robbins v. Shelby County Taxing District, 120 U. S. 489. As to just what is left of this exception, after applying the qualification, it is difficult to say. Possibly it leaves such matters as had been previously decided as regulating the liability for marine torts. — Sherlock v. Alling, 93 U. S. 99. [88] The original package cases held that legitimate articles of inter-state commerce, cannot he interfered with by taxation or otherwise, so long as they remain in the original package in which they were imported; and ardent spirits and tobacco are recognized among the legitimate objects of commerce. — Austin v. Tennessee, 179 U. S. 343 and cases cited. In one of the Oleomargerine cases, the court reviews a number of cases, notes the fact that the court in one of the spirituous liquor cases (Walling v. Michigan, 116 U. S. 446, 459) placed its decision on the discrimination made, and, in answer to the suggestion that the act (“prohibiting certainu persons from soliciting the sale of intoxicating liquors) was an.exercise of the police power, remarked: “This would be a perfect justification of the act, if it did not discriminate against the citizens and products of other States,” then olraws the distinction between the case in point and the Leisy v. Hardin, case, and others, to the effect that there was no déception or fraud in the sale of the spirits, and finally held that the act to prohibit the sale of olemargerine, colored to look like butter, was valid even as to sales in original packages by a non-resident, because “the constitution of the United States does not secure to any one the privilege of defrauding the public.” The decision winds up with the expression; “the judiciary of the United States should not strike down a legitimate enactment of a state especially if it has direct connection with the social order, the health, and the morals of its people, unless such legislation plainly and palpably violates some right granted or secured by the national convention, or encroaches upon the authority delegated to the United States for the attainment of objects of national concern.” — Plumley v. Massachusetts, 155 U. S. 461, 470-1, 479-80. Notwithstanding the expression referred to in the Michigan case, which might seem to indicate the contrary, we think that the other cases make it clear that the Supreme Court of the United States would hold that our statute, in question, is violative of the inter-state commerce clause, unless it is relieved by the act known [89] as the Wilson Act, which provides that all intoxicating liquors “transported into any state, or remaining therein for use, consumption, sale or storage, 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.”— Act, Aug. 8, 1890, Ch. 728, 26 Sub. L. 313; 3 Fed. Statutes, Anno. p. 853. This statute was considered by the United States Supreme Court in the Kehrer case, in which the defendant who was acting for a non-resident firm, was arrested for selling whiskey in Kansas in original packages on the day after the Wilson Act went into effect, and sued out a writ of habeas corpus. The circuit court discharged the petitioner, but the Supreme Court reversed the case, Chief Justice Fuller delivering the opinion, in Avhich he recognizes the right of .the state, in the exercise of its police poAver to prohibit the sale of spirits, restricted hoAvever by. the inability of the State to interfere with the importation of articles of trade, AAdiich congress, by non-action had declared should be unmolested, and goes on to hold that the Leisy v. Hardin case and others, did not declare the state. acts invalid, but merely limited their operation to property strictly within the jurisdiction of the state, and that the Wilson Act simply “removed the impediment to the enforcement of the State laws in respect to imported packages in their original condition,’ and alloAved imported property to fall at once upon arrival within the local jurisdiction. — In re Rehrer, 140 U. S. 545, 564. This was followed by the Iowa case, in which the court held that the effect of the Wilson Act Avas to “divest them (objects of inter-state commerce shipments) of that character at an earlier period of time than Avould otherwise he the case,” to-wit, after the object had reached its destination, it fell under the control of state legislation, so that it could not be sold even in the origi [90] nal package, but before it reached the destination, it continued to be an object of interstate commerce so that the express company could not he made liable, under the state law, for moving it from its platform to its warehouse. — Rhodes v. Iowa, 412, 426. There ca.n be no doubt that there is nothing in the law to prevent a resident of Florida, by correspondence or otherwise from selling to a resident of Monroe county, Alabama, spirituous liquor, and, as held in the “Drummer” cases, that right carries with it the right to personally solicit business. The decisions of the Supíneme Court of the United States, supra, make it clear that the Wilson act does not attach to any part of the transaction prior to the time when the transportation is completed. It results that, in so fas as section 5087, applies to residents of other states, soliciting orders for spirituous liquors to be transported from one state into the other, said section is violative of section 8 Art. I of the United States constitution. This does not affect the operation of the statute on persons within the state. We are borne out in this conclusion by In re Bergen, 115 Fed. Rep. 339 ; State v. Hanaphy, (Iowa) 90 N. W. Rep. 601. The Supreme Court of Kansas seems to have taken a different view, although the point was not really necessary to the'decision of the case. — Westheimer v. Weisman, 60 Kan. 753. The judgment of the court is reversed and a,s the defendant cannot be convicted under the- indictment he will be discharged. Eeversed and rendered. Weakxey, C. J., Tyson and Anderson, JJ., concurring.