no statute, state or Federal, or authority thereunder, was called in question here, this rule does not apply. The true and rational rule stated by this court in Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 143, is clearly applicable: "That the court must be able to see clearly, from the whole record, that a certain provision of the Constitution or act of Congress was relied on by the party who brings the writ of error, and that the right thus claimed by him was denied." This case is the not infrequent one of an attempt to clutch at the jurisdiction of this court as an afterthought, when all other resources of litigation have been exhausted.

The Federal question, if any such existed, as to which we express no opinion, was not set up or claimed at the proper time, and

The writ of error must, therefore, be dismissed.

AMERICAN EXPRESS COMPANY v. IOWA.

ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.

No. 67. Argued December 2, 1904.- Decided January 3, 1905.

The writ of error in O'Neil v. Vermont, 144 U. S. 344, was dismissed because it did not appear that the commerce clause of the Constitution was relied on in, was called to the attention of, or passed on by, the state court, and the case is inapposite where it appears that the protection of commerce clause was properly set up, relied upon in, and denied by, the state court.

Bowman v. Chicago, 125 U. S. 465, Leisy v. Hardin, 135 U. S. 100, Rhodes v. Iowa, 170 U. S. 412, Vance v. Vandercook Co. No. 1, 170 U. S. 438, rest on the broad principle of the freedom of commerce between the States, of the right of citizens of one State to freely contract to receive and send merchandise from and to another State, and on the want of power of one State to destroy contracts concerning interstate commerce valid in the States where made.

The right of the parties thereto to make a contract, valid in the State where made, for the sale and purchase of merchandise and in so doing to fix the

Argument for Plaintiff in Error.

196 U. S.

time when, and condition on which, completed title shall pass is beyond question.

Without passing on the questions whether the property in a C. O. D. shipment is at the risk of buyer or seller and when the sale is completed, a package of intoxicating liquor received by an express company in one State to be carried to another State, and there delivered to the consignee C. O. D. for price of the package and the expressage, is interstate commerce and is under the protection of the commerce clause of the Federal Constitution and cannot, prior to its actual delivery to the consignee, be confiscated under prohibitory liquor laws of the State.

THE American Express Company received at Rock Island, Illinois, on or about March 29, 1900, four boxes of merchandise to be carried to Tama, Iowa, to be there delivered to four different persons, one of the packages being consigned to each. The shipment was C. O. D., three dollars to be collected on each package, exclusive of thirty-five cents for carriage on each. On March 31 the merchandise reached Tama, and on that day was seized in the hands of the express agent. This was based on an information before a justice of the peace, charging that the packages contained intoxicating liquor held by the express company for sale. The express company and its agent answered, setting up the receipt of the packages in Illinois, not for sale in Iowa, but for carriage and delivery to the consignees. An agreed statement of facts was stipulated admitting the receipt, the carriage, and the holding of the packages as above stated. The seizure was sustained. Appeal was taken to a District Court. The express company and its agent amended their answer, specially setting up the commerce clause of the Constitution of the United States. There was judgment in favor of the express company, and the State of Iowa appealed to the Supreme Court and obtained a reversal. 118 Iowa, 447. This writ of error was prosecuted.

Mr. Lewis Cass Ledyard for plaintiff in error:

Plaintiff in error relies on the principles fairly established as to the right of shippers sending goods from one State to another free from state interference in Leisy v. Hardin, 135 U. S. 100, 110; Bowman v Chicago &c. Ry., 125 U. S. 465;

196 U. S.

Argument for Plaintiff in Error.

Rhodes v. Iowa, 170 U. S. 412; Vance v. Vandercook Co., 170 U. S. 438, 444; In re Rahrer, 140 U. S. 545.

The effect of the propositions established in these cases is to exempt from state regulation or interference, a shipment of liquors imported into a State, until the contract of shipment or the act of interstate transportation is fully performed and consummated by delivery to the consignee. Such delivery marks the first point of time at which the goods become subjected to state control, as being commingled in the general mass of property within the State, and then only is there a subject upon which the police power of the State can operate.

The seizure of the liquors in the present case took place before that time and while the goods were still in the possession of the interstate carrier engaged in the act of interstate transportation. They were, therefore, clearly exempt from seizure or interference or regulation by the State under the propositions above stated.

O'Neil v. Vermont, 144 U. S. 323, was not decided on Federal grounds but the writ of error was dismissed because not properly taken to the state court. While the position taken by the state court in this case that the technical property in the goods remained in the consignor, and that the express company was their agent with authority to transfer the title to the consignee upon payment of the purchase price, is of little importance, it is opposed by the great weight of authority. In such a case, the sale is complete upon a delivery of the goods to the carrier, who becomes the agent of the consignee for the purpose of accepting a delivery and transporting the goods to him, and the agent of the consignor for the purpose of the collection of the purchase price. Commonwealth v. Russell, 11 Kentucky, 576; State v. Cairns (Kansas), 68 Pac. Rep. 621; James v. Commonwealth, 42 S. W. Rep. 1107; Commonwealth v. Fleming, 130 Pa. St. 138; State v. Flanagan, 38 W. Va. 53; Pilgreen v. State, 71 Alabama, 368; Higgins v. Murray, 73 N. Y.

At the time of the seizure, the carrier in the present case was

Argument for Plaintiff in Error.

196 U.S.

engaged in an act of interstate commerce transportation, and until that was concluded and consummated the goods were not subject to the police power of the State. Norfolk & Western Railway Co. v. Sims, 191 U. S. 441, citing Brown v. Maryland, 12 Wheat. 419.

If such a transaction be not interstate commerce, protected by the Federal Constitution from state regulation, then no transaction can come within the definition of those words.

The suggestion in the opinion that "the express company in effect engaged in the business of selling, through agents in this State, intoxicating liquors shipped by it for that purpose from the State of Illinois," and that "this was a mere device, to evade the police laws of this Commonwealth" is not tenable. The merchandise was not shipped by the express company, but by the consignors.

The express company acted in entire good faith, accepting and forwarding the shipment in the ordinary course of business, without the slightest knowledge or suspicion that it contained intoxicating liquors.

But if this were otherwise, and it had been shown that the carrier had knowledge of the contents of the shipment, it would be quite immaterial as under the cases cited supra the property was under the protection of the commerce clause of the Constitution while it was in transportation from one State to another.

Mr. Lawrence Maxwell, Jr., for plaintiff in error in No. 821 argued simultaneously herewith:

The Iowa statute, as construed by its Supreme Court, is repugnant to the Constitution and laws of the United States, unless it is authorized by the Wilson Act.

The Wilson Act does not allow the State of Iowa to prevent the delivery of liquor shipped from another State. Its power under the Wilson Act does not attach until the interstate

Adams Express Co. v. Iowa, p. 147, post.

196 U. S.

Argument for Plaintiff in Error.

transportation has been completed by delivery to the consignee in Iowa.

The express company did not sell the liquor. It acted only as a common carrier to deliver, on certain conditions, liquor already sold, and its agreement not to deliver the goods until C. O. D. charges were paid and then to return the money to the shippers is a mere incident to its express business and does not subject it to the charge that thereby it engaged in liquor selling at retail in Iowa.

The right to contract in another State for the transportation of merchandise from that State into Iowa, and incidentally to fix the terms upon which the goods shall be delivered, involves interstate commerce in its fundamental aspect, and cannot be controlled by the State of Iowa.

The Supreme Court of Iowa misconceived the decision of this court in O'Neil v. Vermont, see cases cited by plaintiff in error in No. 67.

See article on Carriers by Justice Emlin McClain, of Iowa, published in 1903, in 6 Cyc. 476, stating that on delivery C. O. D. the title to the goods passes to the consignee on delivery to the carrier, but right to possession in the nature of a vendor's lien remains with the consignor while the goods are in the carrier's possession, and terminates only when the condition is performed and the money paid by the consignee to the carrier, whereupon the title to and possession of the money vests in the consignor. The following cases involved C. O. D. shipments and support that view. Pilgreen v. State, 71 Alabama, 368; State v. Carl, 43 Arkansas, 353; Carthage v. Duvall, 202 Illinois, 234; Carthage v. Munsell, 203 Illinois, 474; Breechwald v. The People, 21 Ill. App. 213; Frolich v. Alexander, 36 Ill. App. 428; Coffeen v. Huber, 78 Ill. App. 455; State v. Cairns, 68 Pac. Rep. (Kansas) 621; Commonwealth v. Russell, 11 Ky. L. R. 576; James v. Commonwealth, 102 Kentucky, 108; S. C., 19 Ky. L. R. 1045; S. C., 42 S. W. Rep. 1107; State v. Intoxicating Liquors, 73 Maine, 278; State v. Peters, 91 Maine, 31; Higgins v. Murray, 73 N. Y. 252; Norfolk & Western R. R. Co.