Statement of the Case.

THIS action was begun in the Circuit Court of the United States for the Northern District of Illinois, June 15, 1886, on which day the plaintiffs filed their declaration, as follows:

"George A. Bowman, a citizen of the state of Nebraska, and Fred. W. Bowman, a citizen of the State of Iowa, co-partners doing business under the name, firm and style of Bowman Bros., at the city of Marshalltown, State of Iowa, plaintiffs in this suit, by Blum & Blum, their attorneys, complain of the Chicago and Northwestern Railway Company, a citizen of the northern district of the State of Illinois, having its principal office at the city of Chicago, in said State, defendant in this suit, of a plea of trespass on the case.

"For that whereas the defendant, on May 20th, 1886, and for a long time previous thereto and thereafter, was possessed of and using and operating a certain railway, and was a common carrier of goods and chattels thereon for hire, to wit, from the city of Chicago, in the State of Illinois, to the city of Council Bluffs, in the State of Iowa.

"That said defendant was at said time and is now a corporation existing under and by virtue of the laws of the State of Illinois, and that it was and is the duty of said defendant to carry from and to all stations upon its line of railway all freight tendered it for shipment.

"That upon May 20th, 1886, the plaintiffs offered to said defendant for shipment over its line of railway, and directed to themselves at Marshalltown, Iowa, five thousand barrels of beer, which they had procured in the city of Chicago, to be shipped from said city to the city of Marshalltown, in the State of Iowa, which is a station lying and being on said defendant's line of railroad between said cities of Chicago and Council Bluffs, but the defendant then and there refused to receive said beer, or any part thereof, for shipment, to the damage of the plaintiffs of ten thousand dollars, and therefore they bring their suit, &c.

"And for that the plaintiffs, neither of whom is a hotelkeeper, a keeper of a saloon, eating house, grocery, or confectionery, on the 7th day of July, 1884, and upon several occasions thereafter, presented to the board of supervisors of

Statement of the Case.

Marshall County, Iowa, a certificate signed by a majority of the legal electors of Marshalltown, Marshall County, Iowa, which stated that said Fred. W. Bowman is a citizen of said county; that both of said plaintiffs possess a good moral character, and that they (said electors) believe said plaintiffs to be proper persons, and each of them to be a proper person, to buy and sell intoxicating liquors for the purposes named in section 1526 of the Iowa Code; that at said time and upon several occasions thereafter they and each of them, the said plaintiffs, filed a bond in the sum of three thousand dollars with two sureties, which bond was approved by the auditor of said county, as is provided by section 1528 of the Code of Iowa; that thereupon said board of supervisors refused to grant such permission to either of said plaintiffs, or to them jointly.

"And for that whereas the defendant, on May 20th, 1886, and for a long time previous thereto and thereafter, was possessed of and using and operating a certain railroad and was a common carrier of goods and chattels thereon for hire, to wit, from the city of Chicago, in the State of Illinois, to the city of Council Bluffs, in the State of Iowa.

"That said defendant is a corporation existing under and by virtue of the laws of the State of Illinois; that it was the duty of the said defendant to carry from and to all stations upon its line of railway all freight that might be intrusted to it, and that it was the duty of said defendant to transport from said city of Chicago to said city of Marshalltown the five thousand barrels of beer herein before and hereinafter mentioned, which plaintiffs requested it so to transport; that in the commencement of May, 1886, the plaintiffs purchased, at the city of Chicago, five thousand barrels of beer, at $6.50 per barrel, which beer they intended to send to Marshalltown, Iowa, at which place and vicinity they could have sold said beer at eight dollars per barrel, as the defendant was then and there informed; that on May 20th, 1886, said plaintiffs offered for shipment to said defendant railway company said five thousand barrels of beer, directed to said plaintiffs at the city of Marshalltown, in the State of Iowa, and requested said de

Statement of the Case.

fendant to ship said beer over its road, with which request the defendant refused to comply, and declined to ship or receive said beer or any part thereof for shipment as aforesaid, the said defendant, by its duly authorized agent, then and there stating that the said defendant company declined to receive said goods for shipment and would continue to decline to receive said goods or any goods of like character for shipment into the State of Iowa; that on said day, to wit, May 20th, 1886, and for a long time theretofore and since, the plaintiffs were unable to purchase beer in the State of Iowa; that said plaintiffs, at said time, could procure no other means of transportation for said beer than said defendant, and that, by reason of the defendant's refusal to transport said beer, plaintiffs were compelled to sell said beer in the city of Chicago at $6.50 per barrel.

"That by reason of said refusal of said defendant to ship said beer plaintiffs have been damaged in the sum of ten thousand dollars, and therefore they bring their suit, &c."

To this declaration the defendant filed the following plea: "Now comes the said defendant, by W. C. Goudy, its attorney, and defends the wrong and injury, when, &c., and says actio non, &c., because it says that the beer in said five thousand barrels in the plaintiffs' declaration and in each count thereof mentioned was, at the several times in said declaration mentioned, and still is, intoxicating liquor, within the meaning of the statute of Iowa hereinafter set forth; that the city of Marshalltown in said declaration mentioned is within the limits of the State of Iowa: that the said city of Chicago in the said declaration mentioned is in the State of Illinois; that the said beer in said declaration mentioned was offered to this defendant to be transported from the State of Illinois to the State of Iowa.

"That heretofore, to wit, on the 5th day of April, a.d. 1886, the General Assembly of the State of Iowa passed an act entitled 'An act amendatory of chapter 143 of the acts of the twentieth General Assembly relating to intoxicating liquors and providing for the more effectual suppression of the illegal sale and transportation of intoxicating liquors and

Statement of the Case.

abatement of nuisances,' which act is chapter 66 of the laws of Iowa, passed at the twenty-first General Assembly of said State, and which is printed and published in the laws of Iowa for the year 1886, at page 81; to which act this defendant hereby refers and makes the same a part of this plea.

"That in and by the tenth section of said act it was and is provided as follows, to wit:

"That section 1553 of the Code, as amended and substituted by chapter 143 of the acts of the twentieth General Assembly, be, and the same is hereby, repealed, and the following enacted in lieu thereof:

"Sec. 1553. If any express company, railway company, or any agent or person in the employ of any express company or of any common carrier, or any person in the employ of any common carrier, or if any person, knowingly bring within this State for any other person or persons or corporation, or shall knowingly transport or convey between points or from one place to another within this State for any other person or persons or corporation, any intoxicating liquors without first having been furnished with a certificate from and under the seal of the county auditor of the county to which said liquor is to be transported or is consigned for transportation, or within which it is to be conveyed from place to place, certifying that the consignee or person to whom said liquor is to be transported, conveyed, or delivered is authorized to sell such intoxicating liquors in such county, such company, corporation, or person so offending, and each of them, and any agent of such company, corporation, or person so offending, shall, upon conviction thereof, be fined in the sum of one hundred dollars for each offence, and pay costs of prosecution, and the costs shall include a reasonable attorney fee, to be assessed by the court, which shall be paid into the county fund, and stand committed to the county jail until such fine and costs of prosecution are paid. The offence herein defined shall be held to be complete, and shall be held to have been committed in any county of the State through or to which said intoxicating liquors are transported, or in which the same is unloaded for transportation, or in which said liquors are conveyed from

Counsel for Plaintiffs in Error.

place to place or delivered. It shall be the duty of the several county auditors of this State to issue the certificate herein contemplated to any person having such permit, and the certificate so issued shall be truly dated when issued, and shall specify the date at which the permit expires, as shown by the county records.'

"And the defendant avers that at the several times mentioned in said declaration, and each of them, the aforesaid section was the law of the State of Iowa in full force and wholly unrepealed, and that the said plaintiffs did not at any time furnish this defendant with a certificate from and under the seal of the county auditor of the county of Marshall, the same being the county in which said city of Marshalltown is located, and the county to which said beer was offered to be transported, certifying that the person for or to whom the said beer was to be transported was authorized to sell intoxicating liquors in said county of Marshall, nor was this defendant furnished with any such certificate by any person whatsoever.

"And the defendant avers that it could not receive said beer for transportation in the manner named and specified in the plaintiffs' declaration without violating the law of the State of Iowa above specified, and without subjecting itself to the penalties provided in said act, and that this defendant assigned, at the time the said beer was offered to it for transportation as aforesaid, as a reason why it could not receive the same, the aforesaid statute of Iowa, which prohibited this defendant from receiving said beer to be transported into the State of Iowa or from transporting the said beer into the State of Iowa.

"And this the said defendant is ready to verify. Wherefore it prays judgment, &c."

To this plea the plaintiffs filed a general demurrer, and for cause of demurrer assigned that the statute of Iowa referred to and set out in the plea was unconstitutional and void. The demurrer was overruled, and judgment entered thereon against the plaintiffs, to reverse which this writ of error is prosecuted.

Mr. Louis J. Blum and Mr. Edgar C. Blum for plaintiffs in error.