By order of the United States circuit judge, Hon. John F. Philips, Judge of the United States District Court for the Western District of Missouri, sat with Judge Foster on the hear ing of this petition. Messrs. David Overmyer and Hazen & Isenhart for petitioner. Messrs. L. B. Kellogg, Atty-Gen. and R. B. Welch, County-Atty., for the State. Philips and Foster, JJ.: Two principal questions have been discussed by counsel in this case: first, as to the constitutionality of what is known as the "Wilson Bill," passed by Congress on the 8th day of August, 1890; and, second, whether, if said bill be valid, the existing Prohibitory Law of the State of Kansas applies, or is it needful that additional legislation should be had by the State to bring into action in the State the provisions of the Wilson Bill. Under the view taken of the last question, we deem it unnecessary to enter upon any discussion of the first proposition, as with or without the constitutionality of the Wilson Bill the result to the petitioner is the same. The first section of the Prohibitory Law of Kansas is as follows: "Any per son or persons who shall manufacture, sell or barter in spirituous, malt, vinous, fermented or other intoxicating liquors shall be guilty of a misdemeanor," etc. Gen. Stat. 1889, par. toxicating liquors. On August 9, 1890, he was | Prohibitory Law of the State. So that the arrested by the state authorities for a violation proposition stands in this form: On the 7th of what is known as the Prohibitory Law of the day of August, 1890, sales made by the petitionState, and he petitions for his discharge there- er were permissible and lawful under the Confrom, on the ground that he is restrained of his stitution of the United States, the Prohibitory liberty in violation of his rights under the Fed- Law of the State to the contrary notwithstanderal Constitution. ing; therefore, if, on the 9th day of August, 1890, the same act of the defendant is taken from under the protection of the Constitution, and is a violation of the same Prohibitory Law of the State, the conclusion would seem to be inevitable that this changed condition of liability is because of the enactment of Congress on the 8th day of August, 1890. In brief, the contention of the State is that the Act of Congress enlarged the scope and operation of the Act of the State Legislature, making that which was a legitimate business one day a crime the next, not under any law of Congress, but against the law of the State. There is nothing in the wording of the Act implying that Congress assumed such a power, or intended to give such effect to this enactment. At the time Congress passed the Wilson Bill, it was well known and recognized that the supreme court had decided that such a State Prohibitory Law was void in so far as the dealer in imported liquors in the original package was concerned; in other words, there was no law, and could be no law, in existence, making such a business a crime. It cannot be assumed that Congress desired to introduce into the present Police Laws of the State an article or subject hitherto not included by those laws. How could Congress know that the people of all or any of the States on the 8th day of August, 1890, desired to have such subject or article embraced in their Police Laws? The contention of counsel for the State is that it is for the several States themselves to determine the scope and purpose of their Police Laws, and Congress has not undertaken to arrogate to itself any power or control over that subject. In employing the words, "shall be subject to the operation of the laws of the State," Congress did not use them in a mandatory, but in a permissive, sense. The most ardent and enthusiastic advocate of a strong central government would spurn the idea that Congress assumed to dictate or convey a mandate to the several States in the matter of the exercise of their police powers. On the contrary, the Wilson Bill left it to the free and untrammeled action of the several States to determine whether they would or would not include within their Police Laws this particular article of commerce. Every State in the Union probably has upon its statutes some police regulation of the traffic in intoxicating liquors. These statutes, as a rule, exempt from their operation, either in express terms or by implication, imported liquors and their sale in original packages. In some of the States the exception was expressed, as in the Iowa Prohibitory Law prior to 1888, and the old New York Law of 1855, and in all cases where not expressly reserved the law of the land, as declared by the supreme judicial tribunal, supplies the exception, thus indicating the general consensus that hitherto it was not recognized as among the police powers of the State to regulate and interdict among the States the traffic in imported liquors. The decision in Leisy v. Hardin, supra but emphasizes this 2521. Under the decision of the Supreme Court of the United States in Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, this Statute, in so far as it attempted to prohibit the sale of intoxicating liquors imported into the State, and sold by the importer or his agent in the original package, was inoperative and void, being in conflict with $8, subd. 3, art. 1, of the Federal Constitution, which places the power exclusively in Congress to regulate commerce with foreign nations and among the States. Incident to this decision, Congress, on the 8th day of August, 1890, enacted the Wilson Bill, which declares: "That all fermented, distilled or other intoxicating liquors or liquids transported into any State or Territory, or remaining therein for use, consumption, sale or storage therein, 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 is not claimed nor pretended by the attorneys for the State that the petitioner, previous to the passage of the Wilson Bill, was engaged in a business violative of any law of the State; but they do claim that, immediately after the passage of said Bill by Congress, the petitioner's business became and is a violation of the fact and principle. The Prohibitory Law of the State of Kansas where it touched upon interstate commerce was no law at all at the time of this euactment nor since. judgments rendered or mortgages executed prior to such enactment the Statute was inoperative and void, because it impaired the obligation of contracts, and was in violation of secJudge Cooley says: The term 'unconstitution 10, art. 1, of the Constitution; although it tional law,' as employed in American jurisprudence, is a misnomer, and implies a contradiction, that enactment which is opposed to the Constitution being in fact no law at all." Cooley, Const. Lim. 3. might be held to be a valid law as to subsequent contracts,-good in part and bad in part. Now, suppose the Constitution should be amended, and section 10 should be excluded, could it be maintained that this Act of the Legislature would become a valid law as to prior contracts without further legislation? Where is the distinction between the supposed case and the one at bar? In either case the Legislature undertook to legislate on a matter forbidden to it by the Constitution,-in the one case prohibited in terms, and in the other taken away and denied to it by a delegation of all power over the subject matter to Congress. If the constitutional Again, at page 188, this same author says: "When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it. Contracts which depend upon it for their construction are void. It constitutes protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto is true also as to any part of an Actity of the Wilson Bill is to be upheld upon the which is found to be unconstitutional, and which consequently is to be regarded as having never at any time been passed and in legal force." un theory, as claimed by its advocates in the debate thereon in the Senate of the United States, and in the argument at this hearing, that Congress, in the exercise of its power to regulate comHow, then, can the Act of Congress in ques- merce among the States and with foreign nation have the effect and operation claimed for it tions, simply decided or declared that its jurisby the attorneys for the State? For it must be diction should be confined to certain subjects kept in mind that a Legislative Act in conflict matter of commerce, or that certain subjects with the Constitution is not only illegal or void- matter and things which may be considered able, but it is absolutely void. It is as if never subjects of commerce should thereafter be exenacted, and no subsequent change of the Con- cluded from its jurisdiction, under the comstitution removing the restriction could validate mercial clause of the Constitution, and the traffic it or breathe into it the breath of life. For il- in intoxicating liquors should thereafter be lustration: Section 10, art. 1, of the Federal classified and remitted to the subjects within Constitution declares that "no State shall pass the police power of the State, such a law, any bill of attainder, ex post facto laws or law der every rule of construction, must be prosimpairing the obligation of contracts." Sup-pective in its operation. And it must further pose a State should pass any of these prohibited Acts, and after its passage the Constitution should be amended by the assent of the requisite number of States and the foregoing section dropped altogether, so that there was no longer any restriction on the States in this particular. Would anyone contend that a prior enactment in the face of the Constitution, dead at the time of its enactment for want of life-giving power, would at once arise from its tomb, and become a living, actual, lawful thing? Or suppose the Legislature of Kansas in these times of imputed financial distress should enact a law providing that, in all cases of judicial sales of real estate hereafter made on foreclosure of mortgages, there should be a stay of execution for one year after judgment. Such a law would seem fair on its face, and would be in general terms like that of a Prohibitory Law of the State. The courts unquestionably would hold that as to be conceded that, as the right of the State to treat such an article of commerce as subject to laws passed by the State in the exercise of the police power comes for the first time and alone from the enactment of the Wilson Bill, until the State passes a law thereafter forbidding such traffic, it has never exercised the power or the discretion, call it what you may, lodged in it by Congress. From this conclusion we see no logical escape. The operation and scope of criminal laws should not be enlarged by implication, but they should be strictly construed; and, where there is any well-founded doubt as to any act being a public offense, especially one not malum in se, it should not be declared such, but should rather be construed in favor of the liberty of the citizen. It follows that the petitioner is entitled to be discharged, and it is accordingly so ordered. 1 UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF IOWA. Re E. E. SPICKLER. (43 Fed. Rep. 653.) The Act of Congress, known as the "Wilson Bill," making intoxicating liquors imported in original packages subject to the laws of any State into which they are carried, is not an unconstitutional delegation of power, as it simply declares when such property shall become subject to state laws and does not give any power to the States to legislate upon that subject. 12. A State Prohibitory Law, under the decision in Leisy v. Hardin, remains in full force except so far as it was declared inapplicable as to imported intoxicating liquors while remaining in the original packages, and therefore, under the Wilson Bill, making such liquors subject to the laws of the State upon their arrival, no re-enactment of the Statute is necessary in order to give it effect as to such imported liquors.* *See preceding and following case. 8. So long as the illegality, under the Federal Constitution and laws, of the retention of a prisoner under the judgment of a state court is a debatable question, a Circuit Court of the United States should not discharge him on habeas corpus, for this would be simply converting the writ of habeas corpus into a writ of error to review the judgment of a state court. (October 25, 1890.) PETITION for a writ of habeas corpus to in. The facts are stated in the opinion. opening sentence of the first section of the chapter of the Code dealing with this subject, being section 1523 of the Code, and it reads as follows: "No person shall manufacture, or sell, by himself, his clerk, steward or agent, directly or indirectly, any intoxicating liquors, except as herein. after provided." The following portions of the chapter provide the means for enforcing this enactment, for punishing violators of the law and for the sale of liquors for certain specified purposes. I know of no decision of the Supreme Court of the United States which holds that the enactment above cited was beyond the power of the State to enact, or that it was void by reason of any contravening provision of the Federal Constitution. In Bowman v. Chicago & N. W. R. Co., 125 U. S. 465, 31 L. ed. 700, the question was presented whether section 1553 of the Code of lowa, which in terms forbade any common carrier from knowingly bringing within the State any intoxicating liquors without having first received a certificate from the county auditor that the same were imported to be sold for a legal purpose, was not sustainable as an exercise of the police powers of the State; and it was held that the effect of the section was to interfere with the freedom of interstate commerce, and it was therefore void. In Leisy v. Hardin, the facts were that Leisy & Co. were shown to be engaged in the manufacture of beer in the State of Illinois; that they imported a quantity thereof into the State of Iowa for the purpose of selling the same in the original packages; that while in their possession unsold it was seized under the order of the Shiras, J., delivered the following opinion: A petition having been duly filed in this court by E. E. Spickler, averring that he was unjustly and illegally restrained and deprived of his liberty by the sheriff of Carroll County, Iowa, a writ of habeas corpus was issued in his behalf, and, in obedience to the mandate thereof, the sheriff of Carroll County brings the petitioner before this court, and returns, as the cause of his detention, that he, the said Spickler, was, by the District Court of Carroll County, adjudged guilty of a contempt of court in violating an injunction issued by that court restraining him from selling intoxicating liquors contrary to the provisions of the Prohibitory Law of the State, and for such contempt he was fined and imprisoned. Evidence on behalf of petitioner has been introduced, showing that the liquor sold was in the original pack-state court, in a proceeding brought to enforce ages in which it was imported from Nebraska; the defendant doing business at Coon Rapids, Carroll County, Iowa, as agent for parties residing in Omaha,-in other words, the petition er runs a saloon at Coon Rapids, in which, as agent for parties in Nebraska, he sells intoxicating liquors in the same packages in which the same are put up in Omaha. The sales, for the making of which he was fined and imprisoned, were made in September of this year, and after the adoption of the Act of Congress known as the "Wilson Bill." The contention of petitioner is that the Prohibitory Law of Iowa, as applied to imported liquors remaining in the original packages, had been declared unconstitutional and void by the Supreme Court of the United States in the case of Leisy v. Hardin, 135 U. S. 100, 34 L. ed, 128, before the passage of the Act of Congress just cited; and that the passage of that Act did not have the effect of re-enacting that Statute, and that the state law is in fact no law, and can have no force or effect unless re-enacted by the Legislature of Iowa. In my judgment this is a misconception of the construction to be given to the ruling of the Supreme Court in Leisy v. Hardin. It cannot be questioned that the State of Iowa, in the exercise of its police power, had the right to enact a statute prohibiting the sale within its borders of liquors to be used as a beverage. Bartemeyer v. Iowa, 85 U. S. 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. 201, 28 L. ed. 629; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205. The gist of the Iowa Statute is contained in the the state law; that Leisy & Co. thereupon replevied the beer; and thus the question was presented whether the beer was or not, in its then condition, liable to seizure and confisca tion under the Prohibitory Law of the State. This question was carried to the supreme court, and it was by that court held that the beer was not liable to seizure under the Statute of Iowa; that the protection of the clause of the Federal Constitution giving Congress power to regulate foreign and interstate commerce was thrown around the importation until the importer should have sold the same in the original packages, and thereby caused the importation to become a part of the common mass of the property within the State; and that when this was done, then, and not till then, would the property become liable to be dealt with under the provisions of the state statute. If the facts of that case had been that the seizure had not been made until after a sale of the packages by the importer, is it not clear that the supreme court would have held that the same were then subject to the operation of the state law? The three points decided in that case are: (1) That the commercial clause of the Federal Constitution prevents the States from forbidding the importation of any article commonly recognized as property, and not harmful or dangerous in the condition in which it is imported. (2) That the right of importation thus secured protects the property from the operation of state laws until the importer has caused the same to become intermingled with the common mass of the property in the State, which ordinarily is effected by a sale in the original packages. (3) That it is for the Congress of the United States to determine whether such imported property should or should not be rendered subject to the Police Laws of the State at and from any time prior to a sale by the importer in the original packages. In the Bowman Case the supreme court was called upon to decide the validity of a particular section of the Statute, and, for the reasons stated, held it void. In the Leisy Case there was not presented for consideration the validity of one or more sections of the Statute. The real point for decision was whether the Statute, as a whole,-that is, the prohibitory principle,-could be made applicable to beer or other liquors imported from another State; and it was held that "under our decision in Bowman v. Chicago & N. W. R. Co., 125 U. S. 465, 31 L. ed. 700, they had the right to import this beer into the State; and, in the view which we have expressed, they had the right to sell it, by which act alone it would become mingled in the common mass of property within the State. Up to that point of time, we hold that, in the absence of congressional permission to do so, the State had no power to interfere by seizure, or any other action, in prohibition of importation and sale by the foreign or nonresident importer. The legis lation in question is, to the extent indicated, repugnant to the third clause of section 8 of article 1 of the Constitution of the United States, and therefore the judgment of the Supreme Court of Iowa is reversed," etc. The decision in the Leisy Case therefore does not declare any section or particular portion of the Iowa Statute to be wholly void, nor does it declare the whole Statute to be void under all circumstances. What it did declare was, that the effort to make the prohibitory purpose of the Statute applicable to imported liquors remaining in the original packages unsold in the hands of the importer was repugnant to the commercial clause of the Constitution, and this for the reason that, until such importations had become intermingled with the common mass of property in the State, such liquors were not subject to the jurisdiction of the State. Neither in terms nor by fair inference does this decision declare that the Iowa Statute, in whole or in part, is void or unconstitutional, as applied to liquors subject to the jurisdiction of the State. In the Bowman and the Leisy Cases alike, the power of the State to regulate or forbid the sale of intoxicating liquors within its jurisdiction is fully recognized, and the effect of these decisions is simply to define the limitations of that jurisdiction. The language of the state statute is general in its terms, but the Legislature in enacting it must be presumed to have intended it to apply to persons and property within the jurisdiction of the State. It is doubtless true that it was the belief of the Legislature that the Statute would be applicable to all liquors within the boundaries of the State, but that belief grew out of a mistake as to the time when imported property passes under the jurisdiction of the State in the exercise of its police and taxing power. It was not the intent of the Legislature to pass an Act to affect liquors before the same came under the jurisdiction of the State, but to control all within the jurisdiction of the State. When the conclusion reached in the Leisy Case was announced, the extent of the jurisdiction of the State was made plain, and thus it was found that the Statute of Iowa was limited in its oper ation and control to an extent greater than was anticipated by the Legislature. The ascertainment of the fact that broad and general terms used in a statute are subject to the limitation contained in a constitutional provision in the State or Federal Constitution does not show that the Statute is void, but only demonstrates that, in the construction of the language found therein, regard must be had to the constitutional limitation. It is a fundamental rule that Legislative Acts shall not be declared void by the courts, if by any reasonable construction thereof such result can be avoided. If, by limitation upon its general terms, the same can be fairly construed and so applied as to bring the Statute within the Constitution, and thus save it from being in conflict therewith, such limited construction should be adopted. It is entirely clear that the purpose sought to be achieved in the adoption of the Prohibitory Law of the State, and the amendments thereto, was the regulation of the traffic in intoxicating liquors, and to prohibit the sale thereof in the State for use as a beverage. There was no purpose on the part of the State to undertake the regulation of foreign or interstate commerce as such. It has been determined, however, that, in the adoption of the amendments to the Statute, the Legislature has, in effect, attempted to made the Prohibitory Law applicable, not only to property within the jurisdiction of the State, but also to importations before the same became subject to state jurisdiction. To this extent the law is void, and has been so held; but this does not mean that, as applied to property within the jurisdiction of the State, the Statute is void in whole or in part. The true conclusion is that the Statute of Iowa remains in full force as to all property within the jurisdiction of the State. This construction gives full force to the Statute as applied to property within the jurisdiction of the State, and at the same time gives to the importer the full benefit of the protection afforded him by the commercial clause of the Federal Constitution. If the sales made by the petitioner had been made before the adoption of the Act of Congress known as the "Wilson Bill," it might well be claimed that the provisions of the state statute could not be made applicable thereto, and that the petitioner would, of right, be entitled to his discharge. In fact, however, the sales were made after the Wilson Bill had become a law, and it is necessary to consider the effect thereof on the rights of the petitioner. It is said that this Act of Congress is itself void, for the reason that it assumes to confer upon the States the power to regulate interstate commerce. Such is not the purpose or effect of the Act. It does not declare that the States shall, in general or in any particular, have the power to regulate interstate commerce. It confers no power upon the States to legislate upon that subject. The Act declares that intoxicating liquors shall, upon arrival in the State or Territory, be subject to the operation of the police powers of the State. In the exercise of the constitutional power to regulate foreign and interstate commerce, Congress has declared when such imported property shall become subject to the state laws. The States are not authorized to declare when such importations shall become subject to state control, nor can the States in any manner change or affect the enactment made by Congress upon that subject. Congress can at any time abrogate or change the enactment in question, and it is clearly a constitutional exercise of the power conferred on Congress. It is apparent to everyone that at some time, or upon the happening of some event, imported property losses that character, and becomes subject to the laws of the State; and it is for Congress, which possesses the power to regulate commerce, to define the time or event which shall have the effect of subjecting importations to state control, and this is what is done by the Wilson Bill in regard to intoxicating liquors. It is also earnestly contended that, granting the validity of the Wilson Bill, the Statute of Iowa cannot be held to be in force, because it has not been re-enacted since the decision of the supreme court in Leisy v. Hardin. The thought is that the Statute was then declared wholly void, and that the Act of Congress does not impart life and validity to it. If it be true that the Statute was declared wholly void, then it follows that Congress cannot give it life. No one claims that Congress can adopt a Prohibitory Liquor Law for the State of Iowa. The error lies in the assumption that the Statute of Iowa has been declared wholly void. I have attempted to maintain, in this opinion, the proposition that, after the decision in the Leisy Case, the Statute of Iowa remained in full force in relation to all liquors within the police jurisdiction of the State. The language of the Statute is broad and comprehensive, but is nevertheless subject to the limitation imposed upon the police power of the State by the provisions of the Federal Constitution, and must always so remain. All the State can ever do in this particular is to declare the will of the State in regard to the sale of intoxicating liquors when the same come within the jurisdiction of the State. That it has already done in the Statute now in force. The State, under the Wilson Bill, does not possess the power to declare when imported liquors shall be freed from the protection of the commercial clause of the Federal Constitution, and pass under the operation of the police powers of the State. Congress cannot confer that power upon the State. It is for Congress to determine that question. It is for the State to say what the police regulations of the State shall be as to liquors within the jurisdiction of the State, and for Congress to define when or how imported liquors shall become subject to state control. Whether the legislation of the State antedates the action of Congress is wholly immaterial. Congress determines when imported property shall become subject to the state laws, and can at any time change the enactment. The States regulate the sale of property within their jurisdiction, and can at any time modify or change these police regulations. It cannot be true, because Congress to-day passes an Act declaring that importations shall become subject to state police or revenue laws so soon as they pass the boundaries of the State, that the State must, in order to make such laws applicable thereto, at once re-enact such laws. That could only be required upon the theory that the action of Congress was permissive in its effect, and was intended to enable the State to determine when it would subject imported liquors to state control; but it is clear that such was not the purpose of the Wilson Bill. That bill, upon its adoption, made subject to state police laws all imported liquors as soon as they should pass within the boundaries of the State. It is not declared that such liquors shall be subject to the police laws hereafter to be passed, but the declaration is that such liquors shall be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers," etc. It seems to me that this enactment is so plain that it needs no construction other than to read it as it is written, and it must therefore be the fact that, upon the adoption of the Wilson Bill, imported liquors, upon their arrival in Iowa, became subject to the then existing Police Laws of the State, just the same as though such liquors had been manufactured in Iowa. Thus we are brought back to the question whether, when the petitioner sold the liquors which it is admitted he did sell, there was then in force in Iowa a law which made it illegal to sell liquors produced in Iowa for use as a beverage. There is such a law upon the statute books of the State. If that law was in force as to domestic liquors, it was in force as to imported liquors. There is no middle ground in this matter. Unless it be held that the decision of the supreme court in Leisy v. Hardin is to the effect that the Prohibitory Law of Iowa is wholly void, and cannot be enforced as against domestic liquors, then it must be held that, after the adoption of the Wilson Bill, imported liquors became subject to its provisions. After the enactment of the Wilson Bill, the matter of sale in original packages ceased to be of any moment. When the imported liquors pass the boundary of the State, they then become subject to the law of the State, without regard to the character of the packages in which they are contained. It is urged in argument that it is necessary to have legislative action on the part of the State in order to render illegal the sale of imported liquors, because it was held in the Leisy Case that the importer had the right to sell the same in the original packages, and that, as there has been no change in or addition to the Statute of Iowa since the date of that decision, such right must still continue. If the Statute of Iowa in terms excepted from its operation imported liquors, as it once did, there would be force in the argument; but such is not now the fact. The language in the Statute is as broad and comprehensive as it is possible to make it. It cannot be questioned that, in the adoption of section 1523 of the Code, it was the intent of the Legislature to absolutely forbid the manufacture or sale of any intoxicating liquors for use as a beverage. This section was intended to and does apply to all liquors, regardless of the question whether the same are domestic or imported; and the Supreme Court of the United States has, in several cases, upheld the validity of the law as applied to liquors within the ju risdiction of the State, but further held that it |