# O'Neil v. State of Vermont/Dissent Harlan

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* Dissenting Opinions Field Harlan
United States Supreme Court
144 U.S. 323
O'Neil v. State of Vermont
Mr. Justice HARLAN, dissenting.
I do not think that this writ of error should be dismissed for want of jurisdiction.
The supreme court of Vermont, at its October term, 1885, decided the following cases: State v. O'Neil, No. 27, (the present case,) in which the respondent was charged with selling intoxicating liquors contrary to law: State v. O'Neil, No. 28, in which he was charged with keeping intoxicating liquors with intent to sell, etc.; State v. Four Jugs of Intoxicating Liquor, National Express Co., claimant, No. 25; State v. Sixty-Eight Jugs of Intoxicating Liquor, National Express Co., claimant, No. 26. They were disposed of at the same time, and in one opinion, delivered by Chief Justice ROYCE. State v. O'Neil, 58 Vt. 140, 150, 151, 166, 2 Atl. Rep. 586. It is shown by the report of the cases that O'Neil expressly invoked for his protection that clause of the constitution of the United States which gives congress power to regulate commerce among the states. His exception was in these words: 'The state cannot prohibit or regulate interstate commerce.' We give the very words of the exception, because of the statement in the opinion of this court that no such point was passed upon in this case by the supreme court of Vermont. 58 Vt. 150. A like exception was taken by the claimant in cases Nos. 25 and 26, in thess words: 'Congress has exclusive power to regulate commerce among the states.' 58 Vt. 154. In disposing of this question, the court, in its opinion, common to all the cases before it, among other things said: 'If it were competent for persons or companies to become superior to state laws and police regulations, and to override and defy them under the shield of the federal constitution simply by means of conducting an interstate traffic, it would indeed be a strange and deplorable condition of things. The right of the states to regulate the traffic in intoxicating liquors has been settled by the United States supreme court in the License Cases, 5 How. 577.' The opinion closed with these words: 'The result is that in the cases of State v. O'Neil, numbers 27 and 28, the respondent takes nothing by his exceptions; and in the cases of State v. Intoxicating Liquor, National Express Company, claimant, numbers 25 and 26, the judgments are affirmed.' And one of the assignments of error in this court is to the effect that the court below erred in adjudging that the statute of Vermont, in its application to the facts of this case, was not in conflict with the commerce clause of the constitution of the United clause of the constitution of the United to consider the question, distinctly raised by O'Neil in the court below, as well as here, namely, that the transactions on account of which he was prosecuted constituted interstate commerce, which was not subject to regulation by the state? The defendant having expressly excepted to the judgment against him upon the ground that it was not consistent with the power of congress over commerce among the states, and the supreme court of Vermont having adjudged that he could take nothing by his exception, how can it be said that this question was not presented to and was not determined by that court adversely to the accused?
But if it were true that the court below did not, in fact, pass upon, but ignored, this question, with respect to O'Neil, and restricted its observations to the cases in which the National Express Company was claimant, it would not follow that this court is without jurisdiction to determine it. We have often held that a judgment of the highest court of the state which failed to recognize a federal right, specially set up and claimed, ought not to be disturbed, unless its necessary effect was to deny that right, or where it proceeded in part upon another and distinct ground, not involving a federal question, but sufficient, in itself, to maintain the judgment without reference to that question. San Francisco v. Itsell, 133 U.S. 65, 66, 10 Sup. Ct. Rep. 241; Beaupre v. Noyes, 138 U.S. 397, 401, 11 Sup. Ct. Rep. 296, 298. Now, it may be true, as I think it is, under the facts of this case, that the title to the liquors sold by O'Neil did not pass, and he did not intend it should pass, from him upon the delivery to the express company in New York of the jugs or vessels containing the liquors, and therefore that the sales were not in law consummated until the liquors were received in Vermont, and paid for there by the vendee. Still the question remained whether the sending of the liquors from Whitehall, N. Y., to Rutland, Vt., was or was not interstate commerce protected by the constitution of the United States. The contention of the defendant in this court, as it was in the court below, is that, even if the sales were not consummated until the liquors were delivered to the respective vendees he had the right, under that instrument to send the liquors into Vermont, and deliver them there, in the original packages, -that is, in jugs or other vessels,-upon payment of the price charged; and the necessary effect of the judgment was to deny this right, thus distinctly asserted. The decision that the sales were consummated in Vermont, and, consequently, that the defendant violated the laws of that state, in doing what he did there, by his agents, is not, in itself, sufficient to support the judgment, except upon the theory that he had no right, under the constitution of the United States, to send the liquors into Vermont to be there delivered in the original packages. It seems to me entirely clear, in any view of the case, that the court below necessarily determined, adversely to the defendant, a right specially set up and claimed by him under the federal constitution.
In view of what I have said, it is proper to state that, in my judgment, the sending by the defendant from Whitehall, N. Y., to Rutland county, Vt., or intoxicating liquors in jugs, bottles, or flasks, to be delivered only upon the payment of the price charged for the liquors, were not in any fair sense transactions of interstate commerce protected by the constitution of the United States against the laws of Vermont regulating the selling, giving away, and furnishing of intoxicating liquors within its limits. The defendant, in effect, engaged in the business of selling, through agents, by retail, in Vermont, intoxicating liquors shipped by him, for that purpose, into that state from another state. What he did was a mere device to evade the statutes enacted by Vermont for the purpose of protecting its people against the evils confessedly resulting from the sale of intoxicating liquors. The doctrine relating to 'original packages' of merchandise sent from one state to another state does not embrace a business of that character. But, whether this be so or not is a question this court has jurisdiction to determine in the present case, and it is clearly the right of the defendant to have it determined. if the jugs, bottles or flasks containing intoxicating liquors sent into Vermont from the defendant's place of business, over the border, were original packages, the shipment of which into that state, prior to the passage of the act of congress of August 8, 1890, (chapter 728, 26 St. p. 343,) known as the 'Wilson Statute,' were protected by the constitution of the United States against state interference until delivered to the consignees, he is entitled, upon the principles announced in Leisy v. Hardin, 135 U.S. 100, 10 Sup. Ct. Rep. 681, to a reversal of the judgment.
But there is another reason why this writ of error should not be dismissed for want of jurisdiction. The defendant contended in the court below that the judgment of the Rutland county court inflicted upon him, in violation of the constitution of the United States, a punishment both cruel and unusual. It is not disputed that he distinctly made this point; and the question was decided against him in the court below. It is true, the assignments of error do not, in terms, cover this point, but it is competent for this court to consider it, because we have jurisdiction of the case upon the grounds already stated. I fully concur with Mr. Justice FIELD that, since the adoption of the fourteenth amendment, no one of the fundamental rights of life, liberty, or property, recognized and guarantied by the constitution of the United States, can be denied or abridged by a state in respect to any person within its jurisdiction. These rights are principally enumerated in the earlier amendments of the constitution. They were deemed so vital to the safety and security of the people that the absence from the constitution, adopted by the convention of 1787, of express guaranties of them, came very near defeating the acceptance of that instrument by the requisite number of states. The constitution was ratified in the belief, and only because of the belief, encouraged by its leading advocates, that, immediately upon the organization of the government of the Union, articles of amendment would be submitted to the people recognizing those essential rights of life, liberty, and property which inhered in Anglo-Saxon freedom, and which our ancestors brought with them from the mother country. Among those rights is immunity from cruel and unusual punishments secured by the eighth amendment against federal action, and by the fourteenth amendment against denial or abridgment by the states. A judgment, therefore, of a state court, even if rendered pursuant to a statute, inflicting, or allowing the infliction of a cruel and unusual punishment, is inconsistent with the supreme law of the land. The judgment before us, by which the defendant is confined at hard labor in a house of correction for the term of 19,914 days, or 54 years and 204 days, inflicts punishment which, in view of the character of the offenses committed, must be deemed cruel and unusual.
Without noticing other questions, I am of opinion that upon the ground last stated the judgment should be reversed.
Mr. Justice BERWER authorizes me to say that in the main he concurs with the views expressed in this opinion.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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