On February 17, 1904, a grand jury returned into the circuit court of Laurel county, Kentucky, an indictment against Joe Newland and the Adams Express Company, charging that 'the said Joe Newland and the Adams Express Company, the latter being a partnership engaged in and carrying on the business of a common carrier of packages, goods, wares, and merchandise, by the method known as express . . . did, in Laurel county, Kentucky, on the 17th day of February, 1904, unlawfully and wilfully carry for and deliver to George Meece a parcel, package, shipment, and quantity of intoxicating, spirituous, vinous, and malt liquors . . . to be and which was paid for on delivery at East Bernstadt in said Laurel county, same being at the time a shipment commonly known and called C. O. D. shipments , . . . said shipment and delivery being made and done at the time by said Joe Newland and said Adams Express Company in the usual course of business of said Adams Express Company.' [206 U.S. 129, 130] 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 $60. The instructions of the court were as follows:
Judgment was entered on the verdict, which was affirmed by the court of appeals of the state, 27 Ky. L. Rep. 1096, 87 S. W. 1111, and from that court the case was [206 U.S. 129, 131] brought here on writ of error. The act under which the prosecution was had is subsec. 4 of 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:
Messrs. Lawrence Maxwell, Jr., E. F. Trabue, and Joseph S. Graydon for plaintiff in error.
[206 U.S. 129, 133] Messrs. N. B. Hays and Charles H. Morris for defendant in error.
Mr. Justice Brewer delivered the opinion of the court:
The testimony showed that the package, containing a gallon of whisky, was shipped from Cincinnati, Ohio, to George Meece, at East Bernstadt, Kentucky. The transaction was therefore one of interstate commerce, and within the exclusive jurisdiction of Congress. The Kentucky statute is obviously an attempt to regulate such interstate commerce. This is hardly questioned by the court of appeals, and is beyond dispute under the decisions of this court.
In Vance v. W. A. Vandercook Co. 170 U.S. 438, 444 , 42 S. L. ed. 1100, 1103, 18 Sup. Ct. Rep. 674, 676, Mr. Justice White, delivering the opinion of the court, said:
In Rhodes v. Iowa, 170 U.S. 412, 426 , 42 S. L. ed. 1088, 18 Sup. Ct. Rep. 664, 669, it was held that the Wilson act [26 Stat. at L. 313 chap. 728, U. S. Comp. Stat. 1901, p. 3177] 'was not intended to and did not cause the power of the state to attach to an interstate commerce shipment, whilst the merchandise was in transit under such shipment, and until its arrival at the point of destination and delivery there to the consignee.'
The court of appeals sustained the judgment upon these facts: Meece testified that he had not ordered the whisky; that he was not expecting any from Cincinnati, but, on going with his brother to the company's office at East Bernstadt, was told that it was there awaiting him; that he requested the agent to hold it until the succeeding Saturday, when he would come, pay for and take it away; and that on that day he did so, paying $3.85 for the whisky, the express charges [206 U.S. 129, 136] having been prepaid at Cincinnati. The court held that, by reason of the retention of the package by the agent, the company ceased to hold it as carrier, and had become a mere bailee or warehouseman; that, therefore, the statute, as applied to the transaction, was not a regulation of commerce; and, further, that, as Meece had not ordered the whisky, there was no contract for the sale of it in Cincinnati, but only by the company at East Bernstadt, in Kentucky; that while there was no testimony showing that the company's agent at Cincinnati knew that the whisky had not been ordered by Meece, yet its agent in Kentucky was so informed, and, therefore, the company was possessed, through its agent, of knowledge that there was no interstate transaction, and, with that knowledge, sold the whisky to Meece. But that the agent consented to hold the whisky until Saturday did not destroy the character of the transaction as one of interstate commerce is settled by the recent case of Heyman v. Southern R. Co. 203 U.S. 270 , 51 L. ed. 178, 27 Sup. Ct. Rep. 104. In that case whisky had been forwarded to a party in Charleston, South Carolina, and after its arrival at Charleston was placed in the warehouse of the railroad company by its agent, and there seized by constables, asserting their right so to do under the dispensary law of South Carolina. The point was made and sustained by the supreme court of the state of Georgia, in which state an action had been brought against the company for the value of the goods, that when the goods were placed in the warehouse the carrier was thenceforward liable only as a warehouseman. In passing upon this contention we said (p. 276, 51 L. ed. p. 178, 27 Sup. Ct. Rep. p. 107):
With reference to the testimony as to the knowledge by the company of the fact that the whisky had not been ordered by the consignee, it is sufficient to say that the averment in the indictment is that the express company was engaged in the business of a common carrier of packages, etc., and that the shipment and delivery were made and done in the usual course of its business. This excludes necessarily the assumption that the transaction was one of sale by the express company at East Bernstadt, and of course the company was under no obligation to offer testimony in support of that which the state admitted to be the fact.
We do not mean to intimate that an express company may not also be engaged in selling liquor in a state, contrary to its laws, or that the fact that the consignee did not order a shipment might not be evidence for a jury to consider upon the question whether the company was not, in addition to its express business, also selling liquor contrary to the statutes. It is enough to hold, as we do, that under the averments of this indictment such testimony is immaterial. It is, of course, a question of fact whether a carrier is confining itself strictly to its business as a carrier, or participating in illegal sales. The consignor alone may be trying to evade the statute. He may forward the liquors in the expectation that the consignee will, when informed of their arrival, take and pay for them. So the fact that there is no previous order by the consignee [206 U.S. 129, 138] may not be conclusive of the carrier's wrongdoing, but still it is entitled to consideration in determining that question.
Much as we may sympathize with the efforts to put a stop to the sales of intoxicating liquors in defiance of the policy of a state, we are not at liberty to recognize any rule which will nullify or tend to weaken the power vested by the Constitution in Congress over interstate commerce.
The judgment of the Court of Appeals of Kentucky is reversed and the case remanded for further proceedings not inconsistent with this opinion.
Mr. Justice Harlan dissents.