State v. J. W. Kelly & Co.

Mr. Justice Neil

delivered the opinion of the Court.

In the criminal court of Hamilton county, on the 1'Oth day of February, 1910, an indictment was found against the defendant, containing the following aver-ments :

“That J. W. Kelly & Company, a corporation, heretofore, on the 10th day of February, 1910,. in the county aforesaid, did unlawfully sell as a beverage, spiritous, vinous, malt, alcoholic, and intoxicating liquors within four miles of a schoolhuose where a school was kept.

“Said sale was made under the following circumstances and conditions, to wit:

“On said date the said J. W. Kelly & Company delivered to the Central of Georgia Railway Company, a common carrier of freight, a package containing five gallons 'Of whisky for shipment to one M. F. Frame in *561 the State of New York, the said M. F. Frame having previously ordered said whisky and having sent the purchase price thereof to the said J. W. Kelly & Company through the United States mail from the State of New York, against the peace and dignity of the State.”

A motion to quash was entered containing four grounds; hut, in the view we take of the case, we need consider only the last, which reads as follows:

“Because said indictment shows on its face that the sale complained of was made by J. W. Kelly & Company in Hamilton county, Tennessee, to M. F. Frame, in the State of New York, pursuant to an order sent from said Frame, in the State of New York, to the defendant, J. W. Kelly & Company, in the State of Tennessee; hence said sale is strictly interstate commerce. And if said act hereinbefore set out should be so construed as to prohibit said interstate sale, then it is void, because in conflict with article 1, section 8, cl. 8, of the constitution of the United States, which provides:

“ ‘Congress shall have power ... to regulate commerce with foreign nations, and among the several States, and among the Indian tribes.’ ”

The case came on for trial on the motion on the 28 d day of July, before the Honerable S. D. McReynolds, Judge, etc., whereupon he sustained the motion and quashed the indictment. From this judgment the State appealed to this court, and has here assigned errors.

The prosecution is based on chapter 1, Acts 1909, the first section of which reads as follows:

*562 “That it shall not hereafter he lawful for any person to sell or tipple intoxicating liquors, including wine, ale, and beer, as a beverage, within four miles of any schoolhouse, public or private, where a school is kept, whether the school be then .in session or not, in this State, and that any one violating the privisons of this act shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine for each offense of not less than fifty dollars nor more than five hundred dollars and imprisonment for a period of not less than thirty days nor more than six months.” ■

The general rule in this State, with regard to the sale of personal property, is that it is complete and the title passes as soon as the parties have agreed upon the terms, and that delivery is not essential to the passing of title. Shaw v. Smith, 9 Yerg., 97; Potter v. Coward, Meigs, 22; Miller v. Koger, 9 Humph, 231, 236; Shaddon v. Knott, 2 Swan, 358, 361-364, 58 Am. Dec., 63; Broyles v. Lowrey, 2 Sneed, 23; Fitzpatrick v. Fain, 3 Cold., 15, 19; Bond v. Greenwald, 4 Heisk., 460, 463; Railroad v. Ford, 11 Heisk., 388, 390; Spurlock v. Gill, 3 Tenn. Cas., 43, 45; Mayberry v. Mill Co., 112 Tenn., 568, 85 S. W., 401; Hardwick v. Can Co., 113 Tenn., 676, 88 S. W., 797. Of course, delivery may be made an express condition, and, under such a contract, the title does not pass until the delivery is made. Barker v. Reagan, 4 Heisk., 590; Barker v. Freeland, 91 Tenn., 112, 117, 18 S. W., 60. ’ So, prepayment of the purchase price may be made a condition with like effect. Harding v. Metz, 1 Tenn. Ch., 610. Likewise, when the *563 goods are to be weighed or measured in order to separate them from a mass of similar kind, or to ascertain the quantity of goods, or amount due for them, the title does not pass until this is done. Williams v. Allen, 10 Humph., 337, 51 Am. Dec., 703; Williams v. Adams, 3’ Sneed, 359, 363, 364; Bush v. Barfield, 1 Cold., 93, 95; Fitzpatrick v. Fain, supra; Bond v. Greenwald, supra; Rawls & Griffis v. Patterson, 1 Baxt., 372; Goodrich v. Edmundson, 1 Tenn. Cas.. 584; Mayberry v. Mill Co., supra. But when the goods are ordered through the mail, it is necessary that the assent of the person from whom the order is made shall be communicated to the person making the order (1 Page on Contracts, sections 41, 43, 44) before the contract is complete. This may be done directly (Trounstine v. Sellers, 35 Kan., 447, 11 Pac., 441; McCormick Harvesting Machine Co. v. Markert, 107 Iowa, 340, 78 N. W., 33; Main v. Tracey, 86 Ark., 27, 109 S. W., 1015), or it may be accomplished by filling the order and delivering the goods to a common carrier to be transported to the person making the order. It is held in this class of cases that the title passes upon the delivery of the goods to the carrier; the carrier, in such case, being treated as the agent of the person making the order. Boyd v. Mosely, 2 Swan, 661; Mississippi Mills v. Bank, 9 Lea, 314, 317; Brooks v. Paper Co., 94 Tenn., 701, 710, 31 S. W., 160; Charles v. Carter, 96 Tenn., 607, 36 S. W., 396; Katzenberger v. Leedom & Co., 103 Tenn., 150, 52 S. W., 35. This rule is a general one. The Mary & Susan, 1 Wheat, 25, 4 L. Ed., 27; The Frances, 9 Cranch, 183, 3 L. Ed., 698; *564 Hatch v. Standard Oil Co., 100 U. S., 124, 25 L. Ed., 554; Kelsea v. Ramsey & Gore Mfg. Co., 55 N. J. Law, 320, 26 Atl., 907, 22 L. R. A., 415, and note; State v. Rosenberger, 212 Mo., 648, 111 S. W., 509, 20 L. R. A. (N. S.), 284, 126 Am. St. Rep., 580. In fact, delivery to the vendee or Ms agent is necessary to effect a transfer of title under a contract of sale which contemplates the sending of the property hy the vendor to the vendee. The Venus, 8 Cranch, 253, 275, 3 L. Ed., 553.

So, in the- case stated in the indictment, the sale became complete when the goods were delivered to the Central of Georgia Railway Company, a common carrier of freight, for shipment to M. P. Frame, in the State of New York. The carrier was then charged with the transportation of the goods. Bennett v. American Express Co., 83 Me., 236, 22 Atl., 159, 13 L. R. A., 33, 23 Am. St. Rep., 774, and note. When a commodity has been delivered to a common carrier to be transported on a continuous voyage or trip to a point beyond the limits of the State where delivered, the character of interstate of foreign commerce attaches. Coe v. Errol, 116 U. S., 517, 6 Sup. Ct., 475, 29 L. Ed., 715; General Oil Co. v. Crain, 209 U. S., 229, 28 Sup. Ct., 475, 52 L. Ed., 754; The Daniel Ball v. United States, 10 Wall., 557, 566, 19 L. Ed., 999; Ex parte Koehler (C. C.), 30 Fed., 867, 869; In re Greene (C. C.), 52 Fed., 113; Houston Direct Navigation Co. v. Insurance Co. of North America, 89 Tex., 1, 32 S. W., 889, 30 L. R. A., 713, 59 Am. St. Rep., 17. And compare Adams Express Co. v. Kentucky, 206 U. S., 129, 27 Sup. Ct., 606, 51 L. Ed., 987; Vance v. Van- *565 dercook, 170 U. S., 438, 444, 18 Sup. Ct., 674, 42 L. Ed., 1100; Heymann v. Southern Ry. Co., 203 U. S., 273, 27 Sup. Ct., 104, 51 L. Ed., 178.

It thus appears that the act by which the acceptance on the part of J. W. Kelly & Co. of the offer made by M. P. Frame was manifested, and which closed the contract, placed the goods — that is, the five gallons of whis-ky — the subject of the contract, under the protection of the interstate commerce clause of the federal constitution, since, upon the reception of the goods by the railway company for the purpose of transportation to the foreign State, the initial step in that transportation was begun. To hold that the defendants became liable to criminal prosecution for so acting would be equivalent of holding that, although the act performed by them was of' a kind sanctioned by the federal constitution, yet they were not personally entitled to protection thereunder, and this would be of itself a violation by the court of that constitution.

It is true, as insisted by the State, that it has the right to prohibit the sale of intoxicating liquors within its borders. Kidd v. Pearson, 128 U. S., 1, 9 Sup. Ct., 6, 32 L. Ed., 346; Bartemeyer v. Iowa, 18 Wall., 129, 21 L. Ed., 929; Boston Beer Co. v. Massachusetts, 97 U. S., 25, 24 L. Ed., 989; Foster v. Kansas, 112 U.. S., 205, 5 Sup. Ct., 8, 97, 28 L. Ed., 629; Schmidt v. Cobb, 119 U. S., 286, 7 Sup. Ct., 1373, 30 L. Ed., 321; note to Rothermel v. Meyerle, 9 L. R. A., 366, and cases cited; Woollen & Thornton on the Law of Intoxicating Liquors, secs. 92 to 116, and authorities cited. The right exists under the *566 police power, and the supreme court of the United States has said that, the independence of the police power and of the commercial power and the delimitation between them must always be recognized and observed. United States v. E. C. Knight Co., 156 U. S., 1, 15 Sup. Ct., 249, 39 L. Ed., 325. It is also said, however, that when the State police power and the national commercial power come into conflict, the former must yield. Arkansas v. Kansas & T. Coal Co., 183 U. S., 185, 189, 22 Sup. Ct, 47, 46 L. Ed., 144. This has been frequently shown in the decisions of that court. Lyng v. Michigan, 135 U. S., 161, 10 Sup. Ct., 725, 34 L. Ed., 150; Leisy v. Hardin, 135 U. S., 100, 10 Sup. Ct., 681, 34 L. Ed. 128; Schollenberger v. Pennsylvania, 171 U. S., 18, 18 Sup. Ct., 757, 43 L. Ed., 49. The United States has recognized intoxicating liquors as proper subject of commerce. Wilkerson v. Rahrer, 140 U. S., 545, 11 Sup. Ct., 865, 35 L. Ed., 572; Bowman v. Chicago & N. W. Ry. Co., 125 U. S., 465, 8 Sup. Ct., 689, 1062, 31 L. Ed., 700; Rhodes v. Iowa, 170 U. S., 412, 18 Sup. Ct., 664, 42 L. Ed., 1088; American Express Co. v. Iowa, 196 U. S., 133, 25 Sup. Ct., 182, 49 L. Ed., 417; Adams Express Co., v. Kentucky, 206 U. S., 129, 27 Sup. Ct., 606, 51 L. Ed., 987; Id., 206 U. S., 139, 27 Sup. Ct., 608, 51 L. Ed., 992; Vance v. Vandercook, 170 U. S., 438, 18 Sup. Ct., 674, 42 L. Ed., 1100; Heymann v. Southern Ry. Co., 203 U. S., 270, 27 Sup. Ct., 104, 51 L. Ed., 178. It is impossible, therefore, for the State to prevent such sales of this product as are made within the protection of the interstate commerce clause of the federal constitution. By the act of con *567 gress of August 8, 1890, known as the “Wilson Law” (Act Aug. 8, 1890, c. 728, 26 State. 818 [U. S. Comp, St. 1901, p. 3177]), a very large number of cases were removed from the protection of the interstate commerce law. The Wilson law provides: “That all fermented, distilled or other intoxicating liquors or. liquids transported into any State or territory, or remaining for use, consumption, sale or storage therein, shall upon arrival in such State or territory, be subject to the protection 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 that, if 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.” The supreme court said, in passing upon the constitutionality of this act: “The power to regulate commerce is solely in the general government, and it is essentially a part of that regulation to prescribe the means for governing the introduction and incorporation of articles into and with the mass of property in the country or State. No reason is perceived why, if congress chooses to provide that certain distinct subjects of interstate commerce shall be governed by the rule which divests them of that character at an earlier period of time than would otherwise be the case, it is not within its competency to do so.” Speaking to the effect of the Wilson law, the court said, in the same case: “Congress did not use terms of permission to the State to act, but merely removed an impediment to the enforcement of *568 the State laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the State not then possessed, bnt allowed imported property to fall at once upon arrival within the local jurisdiction.” In re Rahrer, 140 U. S., 545, 11 Sup. Ct., 865, 35 L. Ed., 572. The Wilson law, however, does not touch the case presented by the special facts set forth in the indictment we have under consideration. That act has reference only to intoxicating liquors brought into the State. The case before us is one wherein it appears that the liquors were sent out of the State. We have carefully examined Pabst Brewing Co. v. Crenshaw 198 U. S., 17, 25 Sup. Ct., 552, 49 L. Ed., 925; Foppiano v. Speed, 199 U. S., 501, 516, 26 Sup. Ct., 138, 50 L. Ed., 288; Delamater v. South Dakota, 205 U. S., 93, 27 Sup. Ct., 447, 51 L. Ed., 724; R. M. Rose & Co. v. State, 4 Ga. App., 588, 62 S. E., 117; State v. J. P. Bass Publishing Co., 104 Me., 288, 71 Atl., 894, 20 L. R. A. (N. S.), 495, and other authorities to which we were referred by the learned attorney-general, but we think they fail to show that the Wilson law was intended to cover, or that it can be so construed as to cover, such a state of facts as the indictments now before us presents, and the sufficiency of which we are called upon to determine.

After a very extended and careful investigation of the case, we are unable to find any ground on which to sustain the indictment. The act on which it is based, chapter 1 of the Acts of 1909, does not cover such a case as stated in the indictment, or if, by any construction, it *569 could be held to cover such a case, it would he simply inoperative that far, hut would not be otherwise ineffective. The act is good, hut the indictment is had, and, on the grounds stated herein, the judgment of the trial court is affirmed.