Subsequently the action was dismissed as to Newland, and on a plea of not guilty the case was tried before a jury and resulted in a verdict finding the company guilty and fixing the fine at sixty dollars. The instructions of the court were as follows:

"Gentlemen of the Jury: 1. If you shall believe from the evidence, beyond a reasonable doubt, that the defendant, Adams Express Company, is a copartnership, formed of persons whose names and number were unknown to the grand jury that found this indictment, and who lived out of the State of Kentucky, but are doing business in the State of Kentucky and in Laurel County, Kentucky, and under the firm name and style of 'Adams Express Company,' and that the said Adams Express Company, in this county and within twelve months next before the finding of the indictment herein, knowingly delivered to the witness, George Meece, spirituous, vinous or malt liquors in quantities of less than five gallons at the time mentioned by the witness and received the pay therefor, and that said company received any pay whatever for its service in that behalf, then you should find the defendant guilty and fix its punishment at any fine not less than $60.00 nor more than $100.00, in your discretion, according to proof.

"2. The court says to the jury that if they shall believe from the evidence, beyond a reasonable doubt, that the agent or agents of the defendant's company that accepted, received, transported or delivered the package mentioned in evidence by the witness Meece, knew, or might, by the exercise of such care as persons of ordinary prudence are accustomed to use in the ordinary transactions of life, have known the contents of the package delivered to the witness, then the defendant company is chargeable with such knowledge, and should be held to know the contents of such package."

Judgment was entered on the verdict, which was affirmed by the Court of Appeals of the State, 87 S. W. Rep. 1111, 27 Ky. Law Reporter, 1096, and from that court the case was

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Argument for Plaintiff in Error.

brought here on writ of error. The act under which the prosecution was had is subsection 4 of section 2557b, Kentucky Statutes, 1903, commonly called the "C. O. D." law, which is part of the general local option law as amended in 1902, and which reads:

"All the shipments of spirituous, vinous or malt liquors, to be paid for on delivery, commonly called C. O. D. shipments, into any county, city, town, district or precinct where this act is in force shall be unlawful and shall be deemed sales of such liquors at the place where the money is paid or the goods delivered; the carrier and his agents selling or delivering such goods shall be liable jointly with the vendor thereof."

Mr. Lawrence Maxwell, Jr., and Mr. Edmund F. Trabue, with whom Mr. Joseph S. Graydon was on the brief, for plaintiffs in error, in this case and in No. 332 argued simultaneously herewith: 1

The statute makes it an offense to deliver any C. O. D. shipment of liquor, whether ordered by the consignee or not, and its constitutionality must be determined on that basis.

That was the very purpose of the statute. It was passed to meet the decision of the Court of Appeals in James v. Commonwealth, 102 Kentucky, 108, where it was held that if whiskey ordered by letter is shipped from one county to another by express C. O. D., the sale takes place in the county in which the whiskey is delivered to the carrier, and is not a violation of a prohibitory liquor law in force in the county to which it is shipped. It is wholly immaterial, therefore, under the statute whether the liquor has been ordered by the consignee or not, and the court must determine its validity on that basis.

The court cannot amend the statute so as to limit it to C. O. D. shipments of liquor that have not been contracted for by the consignee. The plaintiff in error has been indicted and convicted under the statute as passed, and if it is repug

1 See p. 138, post.

Argument for Plaintiff in Error.

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nant to the Constitution of the United States the conviction is unwarranted and should be reversed. Trade Mark Cases, 100 U. S. 82, 98; United States v. Reese, 92 U. S. 214; James v. Bowman, 190 U. S. 127, 142; Ills. Central R. R. v. McKendree, 203 U. S. 514; Allen v. Louisiana, 103 U. S. 80; United States v. Harris, 106 U. S. 629, 641; Poindexter v. Greenhow, 114 U. S. 270, 305; Spraigue v. Thompson, 118 U. S. 90, 94; Baldwin v. Franks, 120 U. S. 678, 685; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 565; United States v. Ju Toy, 198 U. S. 253, 262.

As to the rule strictly construing criminal statutes see Wynehamer v. The People, 13 N. Y. 378, 424, 441.

The plaintiff in error, in making and performing the contract of shipment in good faith and in the regular course of business, was engaged in interstate commerce, whether there was an antecedent contract of purchase and sale between the shipper and the consignee, or not.

The business of transporting merchandise from one State to another, and contracts by a carrier for such transportation are interstate commerce, in and of themselves. Hanley v. Kansas City Southern Railway, 187 U. S. 617, 619; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203; Wabash, St. Louis & Pacific Railway Co. v. Illinois, 118 U. S. 557.

Whiskey, as the court has decided, is an article of commerce which carriers engaged in interstate traffic are bound to carry. Leisy v. Hardin, 135 U. S. 100, 110.

The transaction did not cease to be interstate commerce because the plaintiff in error, at the request of the consignee, held the whiskey at East Bernstadt for a week before delivering it. Heyman v. Southern Railway Co., 203 U. S. 270.

As applied to interstate traffic, the statute is an unconstitutional regulation of the business, even if it be limited to cases in which the liquor has not been ordered by the consignee. The state legislature cannot regulate the business of interstate carriers by forbidding the transportation of whiskey from another State, or by requiring them to ascertain, at their peril, whether goods offered to them for transportation in

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Argument for Defendant in Error.

another State have been contracted for by the consignee, and by imposing a fine if it turns out that the package contains whiskey which was not ordered. A carrier is under no such obligation at common law, and has no means of compelling the shipper to disclose his contractual relations with the consignee. Western Union Telegraph Company v. Call Publishing Company, 181 U. S. 92, 102; Hall v. De Cuir, 95 U. S. 485, 490; Brennan v. Titusville, 153 U. S. 289, 302; Bowman v. C. & N. W. Ry., 125 U. S. 465; Rhodes v. Iowa, 170 U. S. 412.

Mr. Napoleon B. Hays, Attorney General of the State of Kentucky, with whom Mr. Charles H. Morris was on the brief, for defendant in error, in this case and in Nos. 332 and 583 argued simultaneously herewith:1

The state court's construction of this statute is not subject to review unless that construction presents a Federal question. The state court says that the statute in question was not intended to apply, and does not apply, to interstate commerce. Rippey v. Texas, 193 U. S. 502 (48–767).

If the State has absolute power over the subject, then it has the power to provide that the acceptance by an express company of the pay for a C. O. D. package of whiskey, which is known to be such, whether interstate commerce or intrastate commerce, shall constitute a sale at the place where the whiskey is paid for.

The power of the state legislature of Kentucky to enact this law, and to prohibit the acceptance of the pay for such packages as appears by the terms of said statute, or as it is made to read by the construction placed upon it by the Supreme Court in Kentucky, is not in conflict with the commerce clause of the Federal Constitution. Noble v. Mitchell, 164 U. S. 367; Miller v. Cornwall Railroad Co., 168 U. S. 128; Carstairs v. Cochran, 193 U. S. 11.

The legislature has the power to determine whether or not

1 See pp. 138 and 139, post.

Argument for Defendant in Error.

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the sale of whiskey is detrimental to the peace, morals and welfare of the people.

Neither the Federal Constitution nor the Fourteenth Amendment took from the States those powers of police to protect the lives, liberty and property of its citizens, and to promote their health, morals, education, peace and welfare. Mugler v. Kansas, 123 U. S. 678.

The statute in question is a legitimate exercise of the police power of the State, not inconsistent with the regulation of commerce by Congress.

The Court of Appeals of Kentucky upheld the local option statute in question upon the ground, not only because, by the construction placed on it by said court, it did not apply to interstate commerce, but because it was a legitimate exercise of the police power of the State, not inconsistent with the power of Congress to regulate interstate commerce.

This is nothing more than a trick, device and an evasion of the law by the plaintiff in error, and it knew, or could have known that it was such, by the exercise of ordinary diligence.

There comes a time when the act of transportation from one State to another ceases to be interstate commerce. The carrier cannot indefinitely hold in its warehouse the articles transported, and without notifying the consignee or consignor, thus prevent the articles mentioned in the Wilson Act from becoming subject to the laws of the State enacted in pursuance of its reserved powers for the protection of the health and welfare of its people.

When the transportation of such articles has reached its termination, and the articles have been tendered to the consignee, or they have been held for such reasonable time in the usual course of business as would permit a delivery, the act of transportation ceases to be interstate commerce; and if the common carrier then stores them and afterwards delivers them, or accepts C. O. D. charges, it is subject to the state law.