Hi RE V AN VLIET.
761
space of three months the creditor shall have power to take possession of the said railways, depots, stations, franchises, and equipments of said company without any judicial or other preliminary process whatever, and the same to sell or lease or otherwise dispose of, as in their discretion they may deem best for the interest of the bondholders. The application of petitioner is refused, and the intervention is dismissed at the cost of the intervenor, and the decree of the court will be framed accordingly.
In re VAN VLIET. (Circuit Court, E. D. Arkansas. October 81,1800.) 1. INTOXIOolTING LIQUORS-QRIGINA.L PolCKAGE LolW-CONSTITUTIONolLITY.
Act Aug. 8, 1890, which provides that intoxicating liquors when shipped from one state to another U shall, upon arrival, be subject to the operation and effect pf the laws of such state, .. is a legitimate exercise of the power to regulate interstate co=erce. Said act subjects liquor shipped into a state to the operation of ita prohibitory Iaws previously passed. ' .
2.
BUIB-El!'FEOT ON STolTE Lolws.
At Law· Petition for habeas C01pU8. O. O. Cole, for petitioner. John Y. Stone, Atty. Gen. of Iowa, for the State. CALDWELL, J. The facts in the case are admitted, and a·re as follows: The Excelsior Brewery Company, a corporation of the state of Missouri, shipped from that state to Pella, in the state of Iowa, consigned to the petitioner, who was its agent at that place, a wooden case containing two dozen quart bottles of beer manufactured by the company at St. Louis, Mo. The casa containing the bottles of beer was substantially made out of wood,' and securely fastened with a metallic seal, and constituted an unbroken or original package. This case of beer, in its original form, the petitioner, as agent for the brewery company, sold at Pella. For this sale he was arrested, tried before ajustice of the peace, convicted, and sentenced to imprisonment. On these facts he claims his imprisonment is illegal, and in violation of the constitution of the United States. This -claim is rested on two propositions. Stating them in the reverse order from that in which the learned counsel for the petitioner presented them, they are-.f?,rst. that the act of congress, approved August 8, 1890, commonly known as the "Wilson Bill," is unconstitutional and void; and, second, that the laws of the state of Iowa, under which the petitioner was tried and sentenced to be imprisoned, are unconstitutional and void. In discussing the first question it is important to have a clear 90nception of what the law was, and on what it was grounded before the passage of the act, and what change the act makes in the old law. Before the passage of the act of the right to transport liquor from one -state to another included, by implication, the right of the importer to
762
FEDERAL REPORTER,
vol. 43.
the original package, in the state in which the trlmsitended. sell By the act of congress, the right which the importer previously enjoyed ofseHing tme liquor in the original package, in the. state where the transit ended, regardless of the laws of such state, is taken 1\ way, the act declaringAhatahe .liquor "shall, upon arrival in such state 01' territory, be subject. to tbe operation and effect ·of the laws of such state. " The constittitionalityIaf.the actin this forum can scarcely be treated lj.S an open question. The constitution declares that "the congress shall have power * * * to regulate commerce * * * among the several states." It was early decided that commerce among the states was subject only to regulations imposed by congress; that the states could not interfere with or such commerce; .and that, J.mtil congress enacted regulations on the subject, it was' free and uqrestricted. It was further decided that the.right to transport an article of commerce\from one state to another included, by necessary implication, the right qf the importer to sell, in ,unbroken packages, at the place where the transit terminated. rule, of congressional action, is thus stated by Chief Justice FULLER, in LeiBy v. Hardin, 135 U. S. 100; '124, 125, 10 Sup. Ct. Rep. 681: .' ... Under ocrr in BiJ'wfud/ii v. Railway 00., infra. they had the righ t to import thls beer into that state. and, in the view which we have expressed, they had the right to sell it, by whicq act alone 'It WOllld I:JeGome mingled in the common mass of property within the state. Up to t,hatpoint of time,we holLi that, ill the absence of., cougressional permission' to do so,' the state had no power to intt'rfere by seizure, or any other action, in prohibition of importatiol.1 and sale by the foreign or non-resident . It that the chiefjustice, speaking for the majority of the court, not say ,the state, under no conditions, can interfere imported liquor; until it is sold by. the importer or the package of the law is that it cannot'do so "in the abpermission." In another pl,lssageof the opinion, sence' of it is said: " . . "The respOnsibility is upon so far as the regulation of interstate commerce js .concerned, to remove the restriction upon the state in dealing with imported articles of trade within its limits, which have not been gledwith thecom.l:non mass of property therein, if in its judgment the end to be secured jl1stifitls and requil'es such action. " Again, iHs isS:td the imported article "is not within the jurisdiction of'thepolice power of the state unless placed there'by congressional action." Again, it is said: . i'Beipg thus ai'ticres of commerce, cl\n a state, in the absence of legislation OD' the 'patt of congress, prohibit their importation from abroad. or from Balster state, or, when imported, ,prohibit their sale by the importer?" Again, the language of .the court in Bowman v. Railway Co., 125 U. 485,8 'Sup. Ct. Rep. 889, 1062, is quoted approvingly where it issaid' . ' ' "That the' of commodities between the states shall be free except where it is positively restricted by congress itself,or by the states in particular easel by the express permission of 'i . .
IN RE VAN VLIET.
763
The dehial to the state of the right to deal with im ported liquor in unbroken packages is uniformly accompanied by the same qualifying words, which are repeated inthe opinion no less than eight times. See, to the same effect, Lyng v. State. 135 U. S. 161, 10 Bup. Ct. Rep. 725; Stoutenburgh v. Hennick, 129 U. S. 141, 9 Sup. Ct. Rep. 256; Bowman v. Rauway Co., 125 U. S. 465, 8 Sup. Ct. Rep. 689, 1062. These repeated and deliberate utterances of the supreme court establish the prop" osition that it is competent for congress, under the grant of power to regulate commerce among the states, to determine when a subject of that commerce shall become amenable to the law of the state in which the transit ends. Congress has exercised the power, underthe constitution, and has declared that liquor transported from one state to another "shall, upon arrival in such state or territory, be subject to the operation 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 though 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." It will be observed that, by the terms . of the act, the original package, "upon arrival" in the state, is put on the same footing with liquors "produced in such state." The original package, when it arrives within the state where its transit terminates, is at once recluceu to the rank of domestic liquor, enjoys no privileges not enjoyed by domestic liquor, and is "subject to the operation and effect of the laws of such state· * * * enacted in the exercise of its police powers, to the same extent and in the same marmer" as domestic liquor. Now, there never was any question but what the laws of Iowa prohibited the sale of liquor" produced" in the state, and that the laws for this purpose w.ere constitutional. These laws were in full force at the date of the passage of the act of congress, and that act having, in legal effect, abolished original packages on their "arrival" within the state, by placing them on the same footing with liquor "produced" within the state, they are as much amenable to the state law as if they had never existed in the form of original packages. Congress has abolished the right of the original package to claim exemption from the operation of the state laws by abolishing, in effect, the original package itself, upon its arrival in the state where the transit terminates. The petitioner's allegation, therefore, that the beer he sold was manufactured, bottled, and boxed by the brewery company in St. Louis, and shipped to him at Pella, for sale as the agent of the brewery company, has no more legal significance, under the act of congress, than would be an allegation that the beer was brewed, bottled, and boxed in Pella. The legal effect of the two averments in respect of the operation of the Iowa law on the beer and sale in Pella would be identical. But it is contended that all the utterances of the supreme court wherein it is said, or is necessarily implied from what is said, that congress may, in regulating interstate commerce, fix the point of time and place when the interstate carriage shall terminate, and the subject of the commerce become amenable to the state law, ill obiter dicta, which the court should disregard. But clearly these ut-
764
FEDERAl, REPORTER,
terances tre ,not obiter dicta in the usual sense of that term. The point was so intimately blended and connected with the main question in the case as to render its decision proper, if not necessary. The case was one of great gravity. and what the court said on this subject was evidently well considered. and deliberately uttered, and any inferior court of the United States that would disregard it would fairly subject itself to the charge of judicial insubordination. This court is not 'called upon to vindicate the of the judgment of the supreme court. That court i8 quite capable ofdoing that for itself. But it is said the act is void. because it is a delegation of legislative power to the states to regulate interstate commerce, and for want of uniformity in its operation. It must be observed that the act does not deal with the liquor after its "arrival" in the state. Congress may regulate interstatecomroerce, but not intrastate commerce. It may regulate commerce "among the states," but not in the states. The state may regulate purely internal, but not interstate, commerce. The act is drawn in view of these settled principles. In protects the interstate transportation of the liquor until its arrival in the state where the transit is to end, and no longer. Upon its arrival in the state, the act of congress declaresit shall be subject to the laws of the state enacted in the exercise of its police powers. Such laws are not regulations of interstate commerce, but have relation to the local and internal concerns of the state. Theright of the state to pass such laws is not derived the constitution of the United States, or any act of congress; it antedates both. Nor does the act of congress confer, or attempt to confer, on the states the right to regulate the liquor traffic within their jurisdiction. It terminates the privileges :previously attaching to the interstate commerce transportation of the liquor, upon its arrival in the state to which it is consigned, instead of ptotecting these privileges until after the package is broken or sold by the importer. It does this by declaring the liquor shall. upon arrival in the state. be su)Jject to its laws, not as regulations of merce. but l;ijl police regUlations. It is said the supreme court declared these laws to be unconstitutional, in so far as they prohibited the sale of liquor by the importer or his agent in the original packages, and that congress could not, in the language of the learned counsel, "vivify a dead statute." There are two answers to this contention. The first is, the act of congress relegates the original package of liquor, on its arrival in the state, to the laws of the state passed in the exercise of its police powers; and there is not now, and never has been, any doubt of the validity of those laws. It is not the laws of the state, but the original package, that is "dead." No pint of the Iowa law is "dead." What was decided by the supreme court was this: That the Iowa law was broad enough in· its terms to embrace all liquors and all sales of liquors by every person,but that this law. under the constitution of the United States, was inoperative on liquor imported into the state, as long as it remained in the original packages, and could not be applied to the sale of liquor in the original package by the importer, "in the absence ot
IN BE VAN VLIET.
765
congressional permission to do so;" and that any application of the law to original packages in the absence of congressional permission was unconstitutional, and an invasion ofthe constitutional rights of the importer. There is, therefore, no foundation for the broad statement sometimes made, but not made by the learned counsel in this case, that" the Iowa liquor law w.as declared to be unconstitutional and void." The court did not declare the statute of Iowa "void," but in legal effect declared its extension or application to liquor in the original packages in which it was imported, in the absence of congressional sanction, was tutiona1. Every written law has its implications, which are as much a part of it as what is expressed. It has been said that, in view of the decision of the supreme court, it must be held that one of the implications of the Iowa statute, at the time it was passed, was that it should not ply to original packages, and that this implication adheres to it, and can only be got rid of by a re-enactment of the statute under existing conditions. Undoubtedly this statute, like all statutes, had its implications, but it had no such implication as is claimed. If the statute had any legal implication on this subject, it was that the act should not be operative on original packages, or the sale thereof by the importers til congress should give its consent thereto. That consent has been given in plenary terms. It was only by necessary implication that the right of the importer to sell his original packages was upheld. Bowman v. Railway 00., 125 U. S. 499, 8 Sup. Ct. Rep. 689,1062. An act of the legislature will not be declared unconstitutional in whole or in part where the legal implications fairly deducible from the act will harmonize it with the constitution. A statute is neither unconstitutional nor void for not containing an exception or qualification which the law will imply. Its operation will be restrained within constitutional limits, but the act itself will not be declared void. It was always competent for congress to invest the state with authority to apply its police regulations to liquor upon its "arrival in such state" for sale or consumption, or, what is the Bame thing, to declare, as the act of congress does, that such liquor shall, upon arrival in the state, be subject to the operation and effect of the laws of the state enacted in the exercise of its police powers. It is not essential that the act of congress should have been passed before the act !>f the legislature. What congress can authorize to be done it may ratify after it is done. It is said by the supreme court of the United States that "a legislative ratification of an act done without previous authority is of the same force as if done by pre-existing power, and relates back to the act done." U. S. v. Arredondo, 6 Pet. 714. Such consent or tion is equivalent to an original authority, and operates precisely as though authority had previously heen given. It is familiar learning that bylaws and ordinances of cities and towns, which were inoperative or" void" for want of legislative power to enact them, are rendered valid and fectual by a subsequent legislative approval or ratification. Dill. Mun. Corp. (4th Ed.) § 79. An act of the legislature, passed in the exercise of the police power of the state, inoperative on liquor in the original when passeq, for want of congrel$sionallicense, is rendered
'166
Vol. 43.
aind:efi"ectual by It subsequent'act of, congress declaring that such 'be subject to the state law., : Suchan Rct reIU{)VeS the im:. pedinumtto: theenlorcement of the law against such packages, and has a precedent authority of congress to pass it. Such a law dMs'hot of coUrse give to the state law a retroactive operation so as to punish a violation of its provisions before its adoption .or ratification by congress.: , But it is said that the state laws referred to in the act of congresS are .laws to be thereafterpitssed, and not the laws in force at the date of the passage of the act of'congress. It is a notorious fact, and part of the' history of the country , of which the court is bound to takejudiCifd notice, that the decision in Leisy v. Hardin led to the opening Up in the states which prohibited the traffic in liquor, or, imposed a high license tax on the traffic, of what were popularly called "original' package houses." Liquor imported in: packages of all forms and sizes; but all original packages, was sold in these houses. In this way the retail traffic in liquor was practically established, and in manycases by the most irresponsible and unsuitable persons who were not citizens oUhe state, and were indifferentto its weHare.Peaceful and quiet communities froin which the sale of liquor had been 'banished for years were suddenly afflicted with all the evils of the liquor traffic. The seats of learning were invaded by the original package vender, and the youth of the state gathered there for instructi.on were corrupted and demoralized, and disorder, violence, and crime reigned; where only peace and order had -been known before. The invaded communities were powerless to protect themselves. They could neither regulate, tax, restrain, nor prohibit this traffic. The courts held, and rightly so, that the importer'and vender of o!r'iginal packages was not subject to the state law, and that any application of the state law to him would be an invasion of his rights under the-constitution of the United States, until congress, in the exercis'e of its power to regulate commerce, should withdraw the protecting shield of that instrument· from original packages that had reached the state where they were destined for consumption or sale. Congress was appealed to for relief. Petitions flowed in upon it praying for immediate action. It acted promptly, and with more celerity than ordinarily characterizes the action of 80 large a deliberati ve body ,and the president approved its action. In the light of these facts it is ahsurd to say that congress did not intend to subject original packages to the operation of the existing state laws, but only to laws thereafter to he passed. Why should 40 states be compelled to call together constitutionai conventions or legislatures, or both, merely to re-enact verbatim these existing laws? for it is conceded a verbatim re-enactment of the existing laws would remove this objection. The obvious design and intention of congress was to withdraw at once the protecting shield of interstate commerce from original packages of liquor the moment they entered the state where their transit was to end, by placing them on the footing of liquor "produced" in the state, and declaring they should be subject to the same laws. This was what the supreme court, as I construe their opinion, had said congress might do, and it is what it did
767
do, in language that admits of no evasion or discussion. The act of congress is a remedial statute, and the rules for the construction of statutes declare they are to be liberally construed, and everything is to be done in advancement of the remedy that can be· given consistently with any construction that can be put upon it; and that, in construing a remedial statute which has for its end the protection of important and beneficial public objects, a large construction is to be given, when it can be done without doing violence to its terms. Wolcott v. Pond, 19 Conn. 597. The supreme court of the United Stat6S has said: "Thetrieaning of the legislature may be extenued beyondtbe precise words used in the law, from the reason or motive upon which the legislature proceeded, from the end in view, or the purpose which was designed." U. s. v. Freeman, 3 How. 565.
.. In the constrnction of a statute it is always legitimate: to look afthe history of the times and examine the state of things existing when it waS framed and passed. The act of congress is not· ambiguous or doubtful, but if it was, the application to it of these canons of construction would remove the ambiguity or doubt. It is undoubtedly true that the pOWEll to regulate commerCe .among the states rests with congress alone, and that any rule congress prescribes on the subject must be uniform in its operation. It is objected against the act of congress that it is . not uniform in its operation, but adopts the varying liquor laws of the several states. In the constitutional grant of powers to congress to regulate commerce among the states/it· is not said that,such regulations shall be uniform. That requirementis implied from the nature of the subject. The constitution declares that congress shall. have power to establish "uniform laws on the subject of bankruptcies throughout the United States." In reference to laws on the subject of bankruptcies, the constitution itself requires they shall be "uniform," and does not leave that requirement to implication, as is done in the case of laws regulating commerce. The bankrupt act of 1867 adopted the' exemption laws of the several states, and gave to the bankrupts in the severa] states the property exempt from execution, by the laws ·of the state of their residence. The bankrupt act was assailed as unconstitutional, because there 'WllS no uniformity in the amount of property exempted to bankrupts, the amounts varying with the varying laws of the states. The point arose in this circuit, and the act was held for reasons which are equally applicable to the "Wilson Bill." That opinion was concurred in by Mr. Justice MILLER, and was ultimately accepted as asound exposition of the law by all the district courts of the United States. In re Beckerford, 1 Dill. 45. That case ought to be conclusive, in this circuit, of question ip the case at bar. TperEj is no want of uniformity in the act of congress. It adopts one uniform rule, which is that the interstate upon the arrival of liquor in the state to which itis consigned .and that it shall be subject to the state law. T4is rule prevails throughout thewhole country, and is therefore a uniform rule. If the court entertaihed:any reasonable doubt of the petitioner's right toa discharge, it would. not discharge him, b:u t in the exercise..9f
the
768
its discreiion would remit him to his right of appeal.. Ex Parte Royall, 117. U. S. 241, 6 Sup. Ct. Rep. 734. The petition for discharge is denied, and the petitioner remanded to the custody of the state authorities in execution of the sentence imposed upon him.
KING
IRoN
BRIDGllJ
&
MANUF'G Co. t1. CITY OF ST. LoUIS.
(Cflre'wlt Court. E. D. Mi880UrI, E. D. November 6, 1890.)
1.
OONTRAQTS-Tnm-WAJVlI:k.
8.
Plaintifl oontracted with defendant to build a bridge "on the present piers, "and bound himself to complete the work within ten months and o'ne week after notice to begin. Defendant failed to prepare the piers to receive the bridge until eleven months after it had given plaintiff notice to begin. Hew., that such failure released plaintifl, from the obligation to complete the bridge wlthinthe:specified time. ,
BAMB-ABBITRA.TION· CLA-USB.
A provision in a contract with a city that the street commissioner shall decide all questions that may arise relative to the execution of the oontract, and that his decision shall be final, does not him jurisdiction to determine the legal ques. tion whether the contractor has lDourred a penalty provided for in the oontraot.
At Law. In this Case it appears from thereCbrd that on November 18,1887, plaintiff contracted with the city of St. Louis "to furnish andel'ect the iron and steel work of the superstructure ofthe main spans of the Grand Avenue bridge, on the present stone piers, and to connect the same with the iron-work of the anchorage," in conformity with certain plans and specifications, and for the sum of$144,000. The contract contained a provision that the work embraced therein should be begun by the plaintiff "within one week after written notice so to do had been given to the plaintiff by the street and that the work should be completed within ten months thereafter. It was also provided by the same dause of the contract that, if the plaintiff failed to complete the work within the time limited, the sum of $20 per day for the first 30 days' delay, and $30 per day for the succeeding 30 days' delay, and $40 per day for the residue of the time, until the work was completed, should be deducted from the contract price. 'Noticeto begin the work was given by the street commissioner on Decembtl 12, 1887, but the stone piers on which the bridge superstructure was to be erected were not completed by the city, ready to receive said superstructure, until November 12, 1888,-more than one week and ten months after the notice to begin had been given. The work embraced by the contract was completed by the plaintiff on June 17,1889, or, as admitted by the answer, on May 80, 1889. The contract also contained the following provision: "(8) To prevent all disputes and litigation, it is further agreed by the parties hereto that the street commis!!ioner shall in all cases determine the amount or qUa'ntity ot the several kinds of work which are to be paid for un-
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