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Argument for Defendant in Error.

196 U.S.

v. Barnes, 104 N. Car. 25; Commonwealth v. Fleming, 130 Pa. St. 138; Bruce v. State, 36 Texas Crim. App. 53; S. C., 35 S. W. Rep. 383; Freshman v. State, 37 Texas Crim. App. 126; S. C., 38 S. W. Rep. 1007; State v. Flanagan, 38 W. Va. 53; Sarbecker v. State, 65 Wisconsin, 171; United States v. Adams Express Co. (Iowa), 119 Fed. Rep. 240; United States v. Lackey (W. Va.), 120 Fed. Rep. 577; United States v. Orene Parker Co. (Ky.), Cochran, D, J., October 30, 1902, unreported.

Mr. Charles W. Mullan, Attorney General of the State of Iowa, for defendant in error in this case and in No. 82:

Where merchandise is delivered by a consignor to a common carrier to be transported by such common carrier to the consignee, and the common carrier is required to collect from the consignee the purchase price of such merchandise before delivering the same to him, the sale is made at the place where the purchase price is paid and the merchandise delivered to the consignee.

Intoxicating liquors which are shipped C. O. D. from another State into the State of Iowa cease to be protected by the interstate commerce clause upon arrival at their destination, and under the Wilson Act they at once upon arrival at their destination become subject to the operation and effect of the laws of Iowa.

No Federal question is involved which gives this court jurisdiction to hear and determine this cause, for the reason that the decision of the Supreme Court of Iowa does not deny the authority of Congress to regulate commerce among the several States.

The ownership and possession of merchandise which is shipped C. O. D. remain in the consignor until it is delivered to the consignee by the common carrier upon payment of the purchase price, and the sale is made at the place of delivery, except where the consignee expressly designates the common carrier as his agent to transport and deliver such merchandise, or where the acts of the parties show that the consignor in

196 U.S.

Argument for Defendant in Error.

tended to part with his property and to transfer the title a: .! possession thereof to the consignee at the time of delivery to the common carrier. United States v. Shriver, 23 Fed. Rep. 134; United States v. Cline, 26 Fed. Rep. 515; McElwee v. Met. Lumber Co., 69 Fed. Rep. 302; McNeil v. Brawn, 53 N. J. Law, 617; Thompson v. Cincinnati, W. & Z. Ry. Co., 1 Bond C. C. 152; Hooper v. C. & N. Ry. Co., 27 Wisconsin, 81; Braddock Glass Co. v. Irwin, 153 Pa. St. 440; Millheiser v. Erdman, 98 N. Car. 292; Stone v. Perry, 60 Maine, 48; Moakes v. Nicholson, 19 C. B. N. S. 290; Hirshorn v. Canney, 98 Massachusetts, 149; Daugherty v. Fowler, 44 Kansas, 628; Suit v. Woodhall, 13 Massachusetts, 391; Wasserboehr v. Boulier, 84 Maine, 165; Lane v. Chadwick, 146 Massachusetts, 68; Benjamin on Sales (1883), $ 1040; State v. O'Neil, 58 Vermont, 140; Brewing Co. v. DeFrance, 91 Iowa, 108; State v. U.S. Ex.Co., 70 Iowa, 271; The Francis, 13 U. S. 183; Mechem on Sales, $$ 494, 502, 740.

The place of the sale of goods or merchandise is the place of delivery; that is, where the sale is completed by delivery. Dow v. Gould &c. Silver Min. Co., 31 California, 629; Mead v. Dayton, 28 Connecticut, 39; Lewis v. McCabe, 49 Connecticut, 155; Weil v. Golding, 141 Massachusetts, 364.

Under the Wilson Act all fermented, distilled or other intoxicating liquors transported into any State or remaining therein for use, consumption, sale or storage, are, upon arrival in such State, subject to the operation and effect of the laws of the State to which they are shipped, and subject to the police powers of such State, to the same extent as domestic property therein, whether such liquors are 'transported in original packages or otherwise. 26 Stat. 313, c. 728; In re Rahrer, 140 U. S. 545; Rhodes v. Iowa, 170 U. S. 412.

Where merchandise is shipped C. O. D., the liability of the carrier ceases and that of a warehouseman. attaches at the time of the arrival of such merchandise at the place of its destination. Weed v. Barney, 45 N. Y. 344; Gilson v. Am. Merchants' Union Ex. Co., 1 Hun (N. Y.), 387; Marshall v. Am. Ex. Co., 7 Wisconsin, 1; Pac. Ex. Co. v. Wallace, 60

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Arkansas, 100; Schouler on Bailments and Carriers, 2d ed., $ 507.

There is no duty or obligation arising out of the nature of a carrier's business which requires such carrier to collect payment of the price of goods transported by it as a condition precedent to their delivery. Such obligation arises, if at all, by special contract, express or implied. Cox v. Columbus &c. R. Co., 91 Alabama, 392; Union R. Co. v. Riegel, 73 Pa. St. 72.

The statute of Iowa under which the liquors were seized and condemned is set out upon pages 19 and 20 of the transcript of the record.

In the seventh paragraph of the agreed statement of facts, it is expressly stipulated that the packages of intoxicating liquors in question were to be delivered to the consignees at the office of the American Express Company in Tama, Tama County, Iowa. (Transcript of record, p. 5.)

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

Although the majority of the Supreme Court of Iowa doubted the correctness of a ruling previously made by that court, nevertheless it was adhered to under the rule of stare decisis, and was made the basis of the decision in this cause. In the previous case it was held by the Supreme Court of Iowa that, where merchandise was received by a carrier with a duty to collect the price on delivery to the consignee, the merchandise remained the property of the consignor, and was held by the carrier as his agent with authority to complete the sale. Upon this premise it was decided that intoxicating liquors shipped C. O. D. from another State were subject to be seized on their arrival in Iowa in the hands of the express company. Sustaining upon this principle the seizure in this case, the Supreme Court of Iowa did not expressly consider the defense based on the commerce clause of the Constitution of the United States, because the court deemed that its ruling on the subject of the effect of the C. O. D. shipment was a wholly non-Federal

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ground, broad enough to sustain the conclusion reached. And this the court considered was sanctioned by O'Neil v. Vermont, 144 U. S. 324.

In accord with the opinion of the Supreme Court of Iowa it is insisted at bar that this writ of error should be dismissed for want of jurisdiction, because the decision below involved no Federal question, and the case of O'Neil v. Vermont, supra, is relied upon. The contention is untenable. As pointed out in Norfolk & Western Ry. Co. v. Sims, 191 U. S. 441, the view taken of the O'Neil case is a mistaken one. True, in that case the Supreme Court of Vermont gave to a C. 0. D. shipment the effect attributed to it by the Supreme Court of Iowa in this case. True, also, a writ of error was prosecuted from this court to the Vermont court upon the assumption that the commerce clause of the Constitution was involved, but this court dismissed the writ of error because it did not appear that the commerce clause of the Constitution was relied on in the state court, was in any way called to the attention of that court, or was passed upon by it. As on this record it appears that the protection of the commerce clause was directly invoked in the state court, it is apparent that the O'Neil case is inapposite. And as, in order to decide the contention that the judgment below rests upon an adequate non-Federal ground, we must necessarily consider how far the C. 0. D. shipment was protected by the commerce clause of the Constitution, which is the question on the merits, we pass from the motion to dismiss to the consideration of the rights asserted under the commerce clause of the Constitution.

We can best dispose of such asserted rights by a brief reference to some of the controlling adjudications of this court.

In Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465, it was held that the statutes of Iowa, forbidding 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, was void, as being a regulation of commerce between the States, and, therefore, that those laws

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did not justify a common carrier in Illinois from refusing to receive and transport intoxicating liquors consigned to a point within the State of Iowa.

In Leisy v. Hardin, 135 U. S. 100, it was held that a law of the State of Iowa, forbidding the sale of liquor in that State, could not be made to apply to liquors shipped from another State into Iowa, before the merchandise had been delivered in Iowa and there sold in the original package, without causing the statute to be a regulation of commerce repugnant to the Constitution of the United States. In Rhodes v. lowa, 170 U.S. 412, the same doctrine was reiterated, except that it was qualified to the extent called for by the provisions of the act of Congress of August 8, 1890, 26 Stat. 313, commonly known as the Wilson Act. In that case a shipment of intoxicating liquors had been made into the State of Iowa from another State, and the agent of the ultimate railroad carrier in Iowa was proceeded against for an alleged violation of the Iowa law, because when the merchandise reached its destination in Iowa he had moved the package from the car in which it had been transported to a freight depot, preparatory to delivery to the consignee. The contention was that, as by the Wilson Act, the power of the State operated upon the property the moment it passed the state boundary line, therefore the State of Iowa had the right to forbid the transportation of the merchandise within the State and to punish those carrying it therein. This was not sustained. The court declined to express an opinion as to the authority of Congress, under its power to regulate commerce, to delegate to the States the right to forbid the transportation of merchandise from one State to another. It was, however, decided that the Wilson Act manifested no attempt on the part of Congress to exert such power, but was only a regulation of commerce, since it merely provided, in the case of intoxicating liquors, that such merchandise, when transported from one State to another, should lose its character as interstate commerce upon completion of delivery under the contract of interstate shipment, and before sale in the original packages.

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