Omaha daily bee., 1903-06-08
PROHIBITION LAW IN DANGER
Important Test Case Taken to Federal
Supreme Court on Error
ALL HINGES ON C. o, D. SALES
Question IL Raised whether Expires.
Company is Agent for serler or
for Purchaser - Iowa
Judges Differ.
(From a stan Correspondents }

DES MONIES, Ia, June 7.-(Special. y
The most important test case taken from
Iowa to the United States supreme court
for many years is the one in which Justice
Brewer has just granted a writ of error in
order that the decision Of the Iowa court
may be reviewed at Washington immedi-
ately. The case is vital to the Iowa pro-
hibitory liquor law. II the supreme court
of the United States declares that the
state court is wrong the door will be again
opened for utter disregard of prohibition
in Iowa in substantially the same man
ner that was followed when the Original
package saloons" were opened and main
tanned
The writ of error was granted in the
case of the State of Iowa against Ameri-
can Express company, a case coming from
Tama county, where the agent of the ex-
press company had received sundry quart
bottles of intoxicating liquors which had
been shipped to customers from Rock
island, ILL.,, on each of which there was
c. o. d. collection charge in addition to
the express charge. The liquors were
seized and condemned by a justice of the
peace. Judge Burnham released the liquors
and the state appealed. The state su-
preme court reversed the district court and
upheld the Justice of the peace.
where the Sale is Made.
The question at issue, and 1t was the
only question involved, was as to the
character of such a proceeding. Where
were the sales actually made? Is c. O.
d. sale to be deemed an absolute sale or
a contract of sale which is not complete
until actual delivery to the buyer? The
case was extensively argued by Attorney
General Mullan for the state and by J.
c. Willett and J. c. Cook for the express
company. At the October term the opinion
of the court was rendered 1t was per
curiam" decision, and 1t contains a most
interesting statement of the issue involved
and discloses, what is more important
that neither the state court nor other
courts are at all Unanimous as to what
should be the rule. In regard to the CEN
trail question the opinion stated:
''If the question were res integra in this
state a majority of the court, as now con-
stituted, would be inclined to the view that
under such a shipment, the carrier is the
agent of the buyer for the purpose of
transportation, and of the seller for the
purpose of retention of possession and col
lection of the purchase price. and that as
necessary corollary title passed to the
buyer on delivery to the carriers"
Settled by Previous Decision.
But the court states that the question is
foreclosed by the decision in the case of
State against United States Express com
pany, in 10th Iowa, where 1t was held that
the express company is agent OF the
consignor with ssauthoTtty to transfer title
to the property Upon payment of the pur.
chase price. That opinion, which was
written by the late Judge Rothrock, has
some others like it appeared in the court,
and the court says it would no doubt be
challenged at this time but for the opinion
Of the United States supreme court in the
Rhodes against Iowa case. The Iowa opin-
ion has been sustained also in other states
Continuing the court said:
I'VE are now asked to change the rule,
to the end that our prohibitory laws, passed
In the exercise of the police powers of the
state, may be rendered less irksome, and
express companies be allowed not only to
transport liquors into the state-which of
course they may debut also to collect
the purchase price for the vendors. The
bancful effect of such a decision is easily
imagined. Everyone knows that an over
ruling of the express company case would
be followed by the establishment In every
community of places for the sale of in
toxicants which would be quite as harmful
and free from regulation and restraint as
were the original package saloons" be-
fore the enactment OF the Wilson bill. The
purpose and intent of that act is quite
generally understood. That it was not
intended to interfere with legitimate acts
of transportation OF property between the
states. nor to prevent a resident OF this
state from shipping liquors into It from
a 4har fa hfo =
use, is freely admitted. But It is Just as
clear to our minds that It was not the
intention Of congress to authorize a carrier
to engage not only in the transportation
OF property, but to act as an agent for
the seller in completing the sale and col
lecting the purchase price.
Question of Interstate Commerce.
Supported as we are IN our position by
respectable authority. fortified by the
thought that we are uphoIding the policy
of this state toward the traffic in intox-
icants and fully believing that the doc
trine announced, while not supported per
haps by the weight of judicial authority,
is one which will do much good and no
harm, we are constrained to adhere to IL.
on the broad ground OF stare decisis, which
Ia one of the safeguards of our judicial
system. This decision relieves us from the
necessity of considering the other question
as to whether or not the goods are pro-
tected by reason of the commerce clause
OF the federal constitution. However some
Of the members of the court would reach
the same result, had Il been found that the
title to the property passed when delivered
to the carrier in the state OF Illinois. Con.
ceding that to be true they are of the
opinion that the transaction was not IL
any fair sense interstate commerce pro
| tected by the constitution of the United
States from state regulation. The express
| company in effect engaged in the business
OF selling through agents in this state a
retail, intoxicating liquors shipped by 1
for that purpose from the state of iii
nois. This was a mere device. as Il SEEM
70 some of us, to evade the police law
| OF this commonwealth. and that the doc
trine Of original packages or OF freedom
| of interstate commerce does not apply 4
a business OF this character. In assuminl
| TO collect the purchase price and to hol
possession until the price was paid, II wa
in no proper sense engaged in interstat
II