IN RE BEINE.
In re BEINE. In r8 JOCKHECK.
In re In re CoPp. In re YOUNT. . m re RAHRER. In re BELL.
(Circuit Court, D.
SCHNIDT. In re DEISHER. In re In re SIeHER. In re TUCHMAN.·
June 14, 1890.)
!lftoxrOATING LIQUORS-ILLEGAL SALE-QRIGINAL PAOKAGES-HABEAS CORPUS.
The laws of Kansas prohibiting the sale of intoxicating liquors within the state being void, as in contravention of the interstate commerce clause of the federal constitution, in so far as they apply to sales by an agent of an importer outside of the state Of liquor in the original packages in which it was brought into the state, without regard to the size of such pa<lkages, an agent imprisoned for such sales is deprived of his liberty in violation of. the constitution of the United States, and will be discharged by the circuit court on habeas CorPU8.
Habeas COrpU8. Wheat, Chesney Curtis, David Ovcrmeyer, Hazen & lzenhart, Eugene Hagan, J. M. Sheafor, Wm. Warner, and H. M. Cau, for petitioners. A. H. Vance, R. B. Welch, andT. F. Garver, for respondents.
CALDWELL, J.. Eleven persons have separately petitioned this court for writs of habeas corpus to relieve them from alleged imprisonment in violation of the constitution of the United States. The cases were heard together; and, while there is some difference in the minor details, the material and. controlling facts are the same in all the cases. Prosecutions were instituted against the petitioners charging them with selling liquor in violation of the laws of this state. They were arrested, and, . failing to give bail, were committed, and thereupon filed their petitions in· this court alleging that they were imprisoned,in violation tion of the United States, in virtue of criminal prosecution commenced against them severally in the state courts of Kansas for selling liquor in that s4l.te in alleged violation of its constitution and laws; that .the liquor for the selling of which they were prosecuted and imprisoned was shipped by its owners, who were citizens and residents of the state of Missouri, from that state into this state, and sold by the petitioners, as ' agents of such shippers and importers, in the original packages in which, it was shipped by its owners into this state; that they sold liquor in no other manner; and that, so far forth as the constitution and laws of this state make such sales of liquor a crime, they are in conflict with the mercial clause of the constitution of the United States, and void. The uncontradicted evidence supports the allegations of the petitions, namely, that certain persons and firms residing and doing business in the state of Missouri owned and shipped from that state into this state distilled liquors and beer, and that the petitioners, as agents for said shippers and importers, sold said liquor in this state in the original packages in which it was into the state by its owners, and sold liquor in no other manner. With an exception not material to be considered in this case, the 8ti tution and laws of this state make it a crime for any person to u()r in this .state. The constitution. and laweof the state make no disv.4.2F.no.11-35
tinction between the importer who sells in the original packages, and one who·llells :inbroken patJkagesor by the glass. The:}aw inflicts tht:l same:. peflftltym1 both. Every question .oflaw raised in these cases has been decided by the supreme court of the United States. That court in'a recent decision [Leisy v. Hardin, 10 Sup. Ct. Rep. 681] says: ' ·.. ; ;1 , . , "That ardent spirits, distilled liquors. ale. and beer are subjects of exchange, barter. and traffic, like any Qthercop.nnodity in which a right of traffic exists, '. and'aretso recognized by thensages of the commercial world, the laws of decisions of is not denie,d," Being thus articles of can a state. in the abBen,cie of legislation ob the part of,cofigress, prohibittheirimportationfromabroad. ol'froma sister state? Or, when imported,'llrohibit their sale by the itnporter?" These questions the court answered in the negative, and that answer is conclusive on this and all othercourts in this country; the court, referring to the laws of Towa, which; like the laws'Of this state, make it unlawfuHor the importer to seH,Isaid: "The plaIntiffs in error are citizens of minois. are not pharmacists, and have no permit. but import into Iowa beer which' they sell in original pack'Under our decision ih Bowmanv. Raitwa1l0o., 125 U. S. SllP., Ct. Rep. 689, 1062. they hali the right to import this beer into t1;J,at s,tate;a,fid, in the view which ;we have express!!!!. they had. the right to sell it, hy which act alone ,it would brcome mingled in the common mass of property within the state. Up to that point of tb;ne; we hold that, in the ablierice of. congressional',permisslon to do so, the state had no power to interfere by seizure or any other:action in prohibition of importation and sale by the non-resident importer." "The legislation in question is to the extent repugnallt to clause of section 8, art. I, of the con,of tbe.United
!twas then no offenseJor these petitioners to sell liquor in the original pMkages as agents for the importers andawners. Having a right 'to make such sales under the constitution of the United States as construed by the supreme court of the United States,any imprisonment ofthem for doing that act is, in the language of the habeas corpU8 act, "in violation of the constitntion" ofthe United States, and illegal; and this court has the jurisdiction, and, it is made its duty, to discharge any person so illegally held ,in custody. Ex parte Royall, 117 V. S. 241, 6 Sup. Ct. Rep. 734; Cunningham 'V. Neagle, 10 Sup. Ct. Rep. 658; Ex parte 40'Fed. Rep. 399; In 1'e Barber, 39 Fed. Rep. 641, 10 Sup. Ct.. Rep'. 862. A question was raised in the argument as to whether the smallness of someol thepMkages sold by some of the petitioners did notde'prive them of the protection given to vendors of origSinglEl bottles' of, beer and whisky, packed and sealed ihal or nailed up in boxestnade of pasteboard or wood, were shi,pped and sold in that 'shape. The' boxes (lontaining one bottle were not packed in any other, box; but shipped singly and separately as so' many distinct and separate packages. It is not perceived why I in the absence of a regulatidn by congress to the contrary, the importer may not de.termine fo1' hi'mself the form and size of the packages he puts up fer export. The idea. tlJatsmall· pMkages 'of liquor cannot be treated as original packages,
because they are small, springs from the conviction back of it that liquor in any form, or..in Ilnysizellpackage, is .nota legitim!l.te subject of commerce. That question is put at rest by the decision of the supreme court of the United States until congress shall act. As long as packages of liquor in any form or size may lawfully be sold by the importer or his agent in a prohibition state,·the size of the package is not of much consequence. Whether the packages be large or small, the practical, eftect seriously impair the effiqacy of all laws intended to prot,ect s6will ciaty from the evils of the liquor traffic. It was foreseen that this would be the consequence of the deoisionof the supreme court. Mr. Justice GRAY, in his dissenting opinion, anticipated as a result of the decision of the CO\1rt the very state of thil\gs now confronting the people of this state. He says: " thel!tatutes of a state, restricting or prohibiting tbel!ale of intoxicating liquors .within itl!! territory are to be held inoperative and void all applied to liquors sent·or brought from another l!tate, and sold by the importer in what is calh..d ·original packages,' the consequence must be that an inhabitant of any state may, under the pretext of interstate commerce,and without license or supervision of any public autllOrity, carry or send i,ntoand sell in any and all of the other states of the Unionjntoxlcating liquors, of whatever description, in cases or kegs, or even in single bottlel! or fial!kl;!, despite any legislation of those states on the SUbject, and although his 0vrll state should be the only one which had not enacted similar laws." The ans.wer of the court to this suggestion is that congress, and congress alone, can provide a remedy for the evil so forcibly stated by the minority of the court. The court said: "The responsibility is upon congress. 80 far as the regulation of interstate commerce is concerned, to remove the restriction upon the state In dealing with imported articles of trade within its limits which have not been mingled with the common mass of property therein, if in its judgment the end to be secured justifies and requires such action." but to enforce I do not sit here either to make or to disregard the it regardless of my own views of its policy or justice. It is to the legislative,. and not to the judicial, department of the government that the people of this and all other states look for "gainst the evils of the sale ofliquor in original imported packages by the importer or his agents. The several petitioners must be discharged. Let a prayer for appeal and its allowance be entered in each case. The stenograpller will file with the clerk the testimony in all the cases; and the testimony relating to each case will be filed and attached to, and made a part of, tl}e record in the case.
TuCHMAN ". WELCH,
YOUNT 'D. SAME.
(CircuU Court,D.Kamas. July16,1890.)
I. CoNS'l'I'1'U'rIO'!UL LA.w-8lJITS AG.UNS'!' A. STATE-IN1UNOTION. COlIlP. Laws Kan. 1885,' o. 85, I 18, provides that the county attorney of auy county In which a liquor nuisance .e:dsts may maintain an action in the name 01 the state to abate andpEl\,petually elljoin it, and tl:1at "any pel'llon Violating the terms of any injunction granted in lIuoh' prooeedings shall oe punished as for contempt... Held, that asutt to restrain the county attorney from instituting proceedings for contempt against. one whO has vj.olated such injunction, is not a suit against the state, within the meaning of CODSt. U. S. amend. 11, which in effect prohibits suits against a state, without its consent, in the United States circuit a.ourt.
L8AJrn-PBOOEEDINGS IN.STATB CouR'l'-CQNTEMPT.
Noris an the institution of such OC?ntempt proceedings an inJunotion against the proceedings of a state court, WhiCh, by Rev. St. U. S. S 720, the federal courts are forbidden to grant, except in oases of bankruptcy. L B4MB·-INTOUOATING LIQUORS-ORIGINAL P AOlUGIIS. Sinll6 a state. law prohibiting the sale of intoxicating' liquors by non-resident importers, in 'the same packages in whloh they were brought into the state, is void as being in contravention of the interstate oommerce clause of the federal constitution, where a state·court has enjoined such sales an injunction will lie from the federal oourts against'the institution of contempt proceedings by the county attorney for the violation of ,the state injunction under Compo Laws Kan. 1885, o. 35, S 18;' since Rev. St. U. S.S 19711, provides that any person who, under color of any state law or statute, subjects another to the deprivation of any rights, privileges, Or immunities secured by the constitution of the United States, shall be liable to the Injured person in anaotion at law or suit in equity, to be prosecuted in the fed eralcourts. ,'
InEquity. On bill for injunctjon. Thia litigation grows out of substantially the following state of facts: The i;upreme court of the United States having recently decided, under ,the ptbhibition law of the state of Iowa, that or vendors of liquors, wines, and beer had the right to import such 'articles of'cd.l11thodities into the state ofIowa(Leisy v. Hardin, 10 Sup. Ct. Rep. 681,rMd, as a consequence of the right of importation, the further tight'of maki'ilgsales 'of those commodities in the form of the original packllges'ifi whidh they were shipped, anything in the state law to the contrary notWithstanding,the Anheuser.Busch Brewing Association, a corporation of the state of Missouri; imported from its business house in the city of St.Louis. Mo., quantities of beer, consigned to the petitioner Bernard Tuchmnn, as its agent, at the city of Topeka, in the state of .Kansas; 'the: said Tuchman also being lI.<iitizeni of the state of Missouri. The Joseph Schlitz Brewing Company, a corporation Of the state ofWisoonsin, imported therefrom into the state of Kansas large quantities of beer, consigned to the petitioner Landis Yount, as its agent; the said Yount being also a citizen of the state of Wisconsin. And, as claimed by said petitioners, the said agents sold said beer in the state of Kansas In the original packages in which they were imported, and not wise. As these two cases involve substantially the same questions of law. the ClUle of Tuchman will here be considered. While complainant was thus