State v. Kirmeyer

The opinion of the court was delivered by Benson, J.: By the prohibitory liquor law of 1881, enacted pursuant to the constitutional amendment of the preceding year, and in various amendments and supplemental acts, the manufacture, sale or barter of spirituous, malt, vinous, fermented or other intoxicating liquor was prohibited, provided that sales might be made for medical, scientific and mechanical purposes, as provided in the act. At the legislative session of 1909, amendments were made eliminating the exceptions, making the prohibition absolute. (Gen. Stat. 1909, §§ 4361, 4362.) At the next legislative session an amendment was adopted providing that sales of alcohol in specified quantities might be made by certain wholesale druggists under restrictions therein stated. (Laws 1911, ch. 178.) The prohibitory law' provides that any person who shall directly or indirectly sell any of the liquors referred to shall be punished as in the act specified. (Gen. Stat. 1909, § 4362.) It further provides that: “Any person who shall take or receive any order for intoxicating liquor from any person in this state, or any person who shall, directly or indirectly, contract for the sale of intoxicating liquor with any person in this state, shall be deemed guilty of a misdemeanor, — 598 — and upon conviction thereof shall be punished therefor as provided in this act for selling intoxicating liquor.” (Gen. Stat. 1909, *§ 4365.) It is also declared that “The giving away of intoxicating liquor, or any shifts or device to evade the provisions of this act, shall be deemed an unlawful selling within the provisions of this act.” (Gen. Stat. 1909, § 4372.). Provisions are also made for the punishment of offenders who maintain places or are guilty of practices in violation of the law which are denounced as common nuisances, and for abating and enjoining such nuisances. (Gen. Stat. 1909, §§ 4387, 4388.) It was held in The State v. Rabinowitz, 85 Kan. 841, 118 Pac. 1040, that acts done in violation of law or which are against good morals are public nuisances, and that the sale and delivery of intoxicating liquors on the streets and alleys of a city publicly, repeatedly and persistently, is a common nuisance, which may be enjoined in a court of equity under section 265 of the civil code by an action in the name of the state. The question to be determined here is whether the facts proven are sufficient to bring the case within, these principles. The defendant contends that his business is protected as interstate commerce under the commerce clause of the federal constitution. It appears that he was keeping for sale and selling beer for years in Leavenworth in violation of law until he became alarmed by the appearance of receivers in prosecutions against brewers. He says this “scared everybody up,” and, as he says, “everybody” moved across the river, and admits that there was not much change in the way of doing business. The principal changes appear to be the storage of his stock just across the river in Missouri, where eight or ten liquor warehouses were established convenient to Kansas, but where there was no station agent or post office. At the time when — 599 — he thus moved across he leased another place in Leavenworth, equipped it with telephones, quartered his teams and wagons there, and continued to use them in making deliveries as he had before done. When orders were received at this place in Leavenworth by mail he took or sent them into Missouri before even opening them. Applicants for beer by telephone at the number carried in his advertisement were told to call up across the river. Although his drivers did not take orders to his knowledge, they made collections when he gave them bills for, that purpose. Empties were handled directly from the Leavenworth place of business to the Leavenworth depot. Shipments to points in Kansas outside the city were made at the same depot. Kegs and other receptacles were labeled by the. defendant or by his teamsters to fill orders in Leavenworth, and hauled daily to customers in the -city. Why was this warehouse established just across the river, which required over a mile of extra hauling and the payment of tolls at the bridge? Why were letters, received by the defendant in person at his place of business in .Leavenworth, remailed to be again delivered to himself at Stillings, a mile and a half away?' Why did he refrain from opening orders for beer until he was across the bridge? In short, why did he resort to these new methods? It is not unjust to the defendant to say that his own testimony furnishes the answer. “It was on account of the law.” Plainly stated, these things appear to have been done to evade the laws of this state—to carry on business of the character theretofore done in violation of law in such a manner as to avoid its penalties. We do not overlook finding No. 15, quoted above, that these things were not intended as a shift and that •none of these circumstances tended to circumvent the law, but this finding is a conclusion or complex fact deduced from the underlying, basic facts found and — 600 — stated in detail and which do not support the conclusion. Neither is it supported by the testimony of the defendant himself. The basic facts must prevail over such conclusion. (C. B. U. P. Rld. Co. v. Henigh, Adm’r., 23 Kan. 347, 359, 33 Am. Rep. 167; Penrose v. Cooper, ante, p. 210, 128 Pac. 362; Warder v. Enslen, 73 Cal. 291, 14 Pac. 874.) The finding that the telephone numbers 313 were not.' changed through oversight relates to the advertisement. The telephone service by that number was installed at 117 Delaware street, when the move was made across the river, as shown by other findings and by Mr. Kirmeyer’s testimony. Such practices as the storage of liquor across the state boundary, the remailing of letters received in Kansas, to himself in Missouri, and the repetition of telephone orders across the line, can not give the high sanction of the federal constitution to an otherwise unlawful traffic. An interpretation of the law which gives effect to the mere form without regarding the substance only serves to bring its administration into reproach. The broad question here is whether the defendant was really engaged in commerce between the states of Missouri and Kansas, or was he only seeking by tricks and devices to evade the laws of his state—doing by indirection that, which could not lawfully be done by ordinary and direct .methods. Real interstate business needs no such methods to establish its character, and a wholesome-regard for the administration of justice will not tolerate such evasions. Numerous cases in the federal supreme court are cited by the defendant wherein persons engaged in good faith in interstate commerce have been protected under the commerce clause of the constitution. There-is no disposition in this court to hold contrary to these decisions. The opinions of that court, however, do not preclude a fair inquiry into methods and practices in — 601 — order to determine whether transactions under investigation constitute legitimate interstate commerce or are colorable merely and intended to evade and defeat the just operation of the constitution and law of the state. In Austin v. Tennessee, 179 U. S. 343, the question of good faith was considered. The court said: “Without undertaking to determine what is the proper size of an original package in each case, evidently the doctrine has no application where the manufacturer puts up the package, with the express intent of evading the laws of another state, and is enabled to carry out his purpose by the facile agency of an express company and the connivance of his consignee. This court has repeatedly held that, so far from lending its authority to frauds upon the sanitary laws of the several states, we are bound to respect such laws and to aid in their enforcement, so far as can be done without infringing upon the constitutional rights of the parties.” (p. 360.) Referring to the claim that each of the packages of cigarettes was a separate and distinct importation, the court said: “We can only look upon it as a discreditable subterfuge, to which this court ought not to lend its countenance.” (p. 361.) The right of the state to protect its citizens with respect to commodities deemed injurious to health is thus referred to in the same opinion: “The doctrine that the silence of Congress as to what property may be of right carried from one state to another means that every article of commerce may be carried into one State from another and there sold,, ought not to be extended so as to embrace articles which may not unreasonably be deemed injurious in their use to the health of the people. ... Of course, it is one thing to force into a State, against its will, articles or commodities that can have no possible connection with or relation to the health of the people. It is quite a different thing to force into the markets of a State, against its will, articles or commodities, which, like cigarettes,' may not unreasonably be held to be injurious to health.” (p. 362.) — 602 — In Cook v. Marshall County, 196 U. S. 261, it was said: “While it is doubtless true that a perfectiy lawful act may not be impugned by the fact that the person doing the act was impelled thereto by a bad motive, yet where the lawfulness or unlawfulness of the act is made an issue the intent of the actor may have a material bearing in characterizing the transaction. . . . So where the lawfulness of the method used for transporting goods from one State to another is .questioned, it may -be shown that the intent of the party concerned was not to select the usual and ordinary method of. transportation, but an unusual and more expensive one, for the express purpose of evading or defying the police laws of the State. If the natural result of such method be to render inoperative laws intended for the protection of the people, it is pertinent to inquire whether the act was not done for that purpose, and to hold that the interstate commerce clause of the Constitution is invoked as a cover for fraudulent dealing, and is no defense to a prosecution under the state law. . . . The power of Congress to regulate commerce is undoubtedly a beneficient one. The police laws of the State are equally so, and it is our duty to harmonize them. Undoubtedly a law may sometimes be successfully and legally avoided if not evaded, but it behooves one who stakes his case upon the letter of the Constitution not to be wholly oblivious of its spirit.” (pp. 271, 272, 273.) That a party while doing business by methods appearing to place it under the shield of interstate commerce may at the same time be engaged in violating the state law was conceded in Adams Express Co. v. Kentucky, 206 U. S. 129, 137, although it was held by the majority of the court that such facts were not shown. Justice Harlan, in a dissent in that and other cases decided with it, stated his belief that they were not cases of legitimate interstate commerce, but showed only devices or tricks to evade or defeat the laws of Kentucky. We understand the majority opinion as assenting to the legal effect of such conduct if proven, differing with Justice Harlan, however, upon the proof. — 603 — It is true that a citizen of Kansas who finds that his business is prohibited by our laws may in good’ faith engage in the same business in another state where the legal obstacle does not exist. But he may not under the guise of moving across the state line, and other shifts or devices to evade the statutes of the state, continue in the prohibited business here and be immune from the penalties of our law. From the facts found by the court and from the testimony of the defendant, it appears that his business was not legitimate interstate commerce but was carried on in violation of the statutes of - this state and is subject to abatement-and injunction. The judgment of the district court is reversed with instructions to enter judgment for the state as prayed for in the petition,