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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

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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.

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.

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tended to part with his property and to transfer the title and 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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