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I sign an concur heartily with the views of the chairman. The individual State should not be allowed to impede interstate commerce, and interstate commerce would be greatly hampered if State laws could forbid the importers and jobbers of our seacoast towns and railroad centers to sell and distribute their merchandise in those towns and centers to, or for resale to, the consumers of neighboring States. We can only imagine the injury to interstate commerce and the whole country if New York or Chicago could put police prohibitions on the jobbing and wholesale dealing which now supplies the nation. This commerce was protected by the old decisions that goods only became subject to State laws when broken up and thrown into the mass of commodities of the State.

The opinion of the Chief Justice in the Rahrer case has been taken to hold, under the Wilson Act, that State police laws can prohibit sales even when the goods are to be taken to other States, or when sales are part of jobbing or wholesale dealings in aid of interstate commerce. It is quite possible, however, that the effect of the decision has been misunderstood, especially as only the local police law as to traffic within the State was involved in the case. Several justices joined in the decision without concurring in the reasoning of the opinion.

Interstate commerce is protected by the Constitution from State interference, and Congress can not surrender the right of this commerce to such protection. The Wilson Act has made that protection more difficult by attempting to abolish the rule of the original package. But from the trend of all the recent cases it may be gathered that the doctrine of the Rahrer case will be limited strictly to retail traffic, over which State laws may properly reign supreme, and that the importing, jobbing, and wholesale dealing which supplies interstate commerce will be held to be absolutely free from State interference.

When any bills mention the police laws of the State ” they should be construed as having reference only to local dealing, over which alone such State police laws can properly have control.

The chairman expressly states that he has confined his reasoning to the constitutional grounds. I desire to add a few practical considerations which would govern my action, assuming that State police laws will affect the goods only when they go into local traffic.

In any event, I am adverse to the Littlefield bill, H. R. 13655, which makes all interstate liquor shipments subject to the police laws of the State from the moment they arrive at any station within the State. Assuming, as I do, that State police laws would affect only local traffic, I concur with the principles of H. R. 16479, as reported by Mr. Brantley, that the common carrier collecting the purchase


price of a package, as agent of the seller, may fairly be subject in so doing to those police laws, although I believe it should apply to any kind of goods sent " collect on delivery” into local traffic, and not merely to intoxicating liquors.

It is for the police laws of the State to determine what goods should be restricted in local traffic, whether they be liquors, drugs, poisons, tobacco, or any other article properly subject to such police laws, and the United States should not discriminate or attempt to exercise police powers as to one article rather than another, even by giving it

, as a special exception, more thoroughly into the hands of the State.

The Littlefield bill, while it pretends to recognize the powers of the State, is really usurping the powers of the State in discriminating between different classes of goods. It must not be forgotten that all powers surrendered by Congress to the State of destination may become restrictions placed upon the State of shipment. If the uniform and equal control of the United States over interstate commerce can be surrendered to particular States, it will enable them to place a yoke upon other States, which thereby will become subject in their commerce to regulations from which the Constitution made them free.

As a practical matter, in making as well as construing statutes, we should consider the old law, the mischief, and the remedy. The careful testimony taken before the committee shows that the only real grievance has been in so-called “ C. 0. D.” deliveries. It is asserted that at many express offices a bottle can be bought by anyone at any time by paying for a C. O. D. shipment to John Jones or John Smith. No doubt this fraud can be met without legislation, but if legislation can give a further remedy it may be proper.

It is true that in a sale “ collect on delivery” the contract is complete when made; that is, the contract is completely made in the State of shipment, and this is held by the Supreme Court. The Littlefield bill is therefore unconstitutional when it enacts that this contract shall be held to have been made in the State of destination, for Congress has no power over any such questions of contracts of sale or their locality. But, although the contract is completely made in the State of shipment, it is so made as a conditional contract upon a condition to be performed in the State of destination, and upon the performance or nonperformance of that condition for the payment of the purchase price the sale becomes complete or becomes void. Under these circumstances the common carrier, after shipment, remains the agent of the seller for the collection of the purchase price and for completion of the sale by delivery, or for the return of the goods in case they are not paid for.

In an ordinary case of sale for cash or credit, the goods become the property of the consignee from the moment of shipment, title passes, and nothing remains to be done except the transportation, including delivery. The consignor has no further property or power in those goods. But in the case of C. O. D. shipments the contract of sale is to be completed and fulfilled, and unconditional title will pass, not by delivery to the common carrier in the State of shipment, but by delivery to the consignee at the place of destination upon the payment of the purchase price. Until that time, although the contract of sale has been made, it has not been fulfilled or performed, and is not absolute but conditional.

Whatever is part performance of a contract of sale—that is, of the change of title from one person into another-can legally and fairly be made subject to State laws so far as local traffic is concerned, as to which only there is little objection to the principles of the bill reported by Mr. Brantley, amending the same

1. By including all goods, and not merely liquors, when they go into local traffic.

2. By including goods brought from foreign countries as well as from another State or Territory.

3. By making the delivery of C. O. D. goods, as well as the collection of the price, subject to State police laws.

4. By striking out the dangerous clause that the place of delivery shall be deemed the place of sale.

The distinction between sale and transportation, which as to local dealings constitutes the dividing line between United States control and that of the State police laws, is often close in its application, but its underlying principles are absolutely clear.

We already see the extent to which legislation as well as attempts at legislation have gone. The bill introduced by Mr. Littlefield actually proposes that liquors may not be allowed to proceed to their place of destination, but may be stopped, if the State law so order, at any station in the route. He is opposed to amendments allowing delivery to the consignee for his own personal use and that of his family. It is idle to say that State statutes will not interfere in these regards. State statutes already exist for inspecting all liquors in course of transportation, confiscating all which are not marked with certificates of purity and quantity placarded on the outside of the package, and refusing to deliver them until proof is made according to statutes, requiring medical certificates or certificates of State inspectors.

One of the main reasons for the adoption of the Constitution was to guard against such vexatious interference of the several States with interstate and foreign commerce.

Any legislation should carefully regard that policy of the Constitution. A State's police laws may extend over local sales made or completed within that State, and in these therefore over C. 0. D. deliveries where the sale is not fully performed until such delivery and collection in that State. Further than this we should not go. Delivery in all other cases is part of transportation and commerce, control of which is reserved to the United States. The State can have no control of such transportation, and such control should not be surrendered by Congress even if such surrender can lawfully be made; nor should the United States invade the police jurisdiction of the States by making any distinction between different classes of goods; nor should the United States allow the inhabitants of one State to put burdens and restrictions upon the citizens of another.

Merchandise of whatever kind-exclusive, of course, of noxious elements like dynamite and disease—when lawfully sold, and therefore lawfully owned, can be taken or brought by the purchaser and owner wherever he may be in this broad land. Congress can and should neither make nor permit anything to the contrary.

I may add that these views as to C. O. D. goods repeat the minority views expressed by me April 1, 1904, in the following language:

The hearings disclosed that deliveries C. 0. D. (collect on delivery) or to others than the original consignee are often a fraudulent cover for sales within the State. I favor amending the bill so as to provide simply that all such deliveries should be subject to the police laws of the State, thus avoiding the serious doubts that may arise upon that bill in its present form—that it makes lawful vexatious restrictions on transportation or inspections at the State line or inquiries as to the purpose of each individual shipment, in which the burden might be thrown on the consignee of proving that it is for his personal use.

It seems to me that the simple provision suggested is all that is required to meet the case, and it would avoid some of the grave constitutional doubts attending the bill in its present form, as well as the difficulties above briefly referred to, while it would thoroughly and effectively secure to each State its full control over traffic within the State.

I think all this legislation a mistake and unnecessary. ter is controlled by the Constitution. But, if any legislation be attempted, it should be confined as above stated.


VIEWS OF MR. FOSTER, OF INDIANA. I concur in the views of the minority, submitted by the chairman of the committee, Mr. Jenkins, except as they may be modified by the following:

By the Wilson law of 1890 and the decision of the Supreme Court in In re Rahrer (140 U. S., 545) upholding this act as constitutional, shipments of intoxicating liquors are now subject to the laws of the State of its destination immediately upon delivery to the consignee, and the power of the State to then deal with them is plenary, whether they be in original packages or otherwise.

While accepting fully the authority of that case and the constitutionality of that act, it seems to me to be clear that Congress can not grant further power to the States without granting to them the power to regulate interstate commerce.

While there is difficulty in determining the line between the police power of the State and the power of Congress over interstate commerce, there must be a demarcation, and it is inconceivable that the power to regulate commerce can stop short of a delivery of the interstate shipment. There must be a consignee to constitute any interstate commerce. The grant of the power to a State to legislate in reference to an article of interstate commerce before the delivery of the article within the State is necessarily a delegation of the power of regulating interstate commerce.

The expression in the bill that the interstate commerce character of all shipments * shall terminate immediately upon their arrival within the boundary of the State does not change the character of the shipment. Congress can not legislate a fact out of existence, clearly not when the existence of such fact is recognized by the Constitution. Neither can Congress construe the Constitution by saying that commerce between the several States shall have a meaning different from that intended by the Constitution. The provision of the bill that before the completion of an interstate commerce shipment the said liquors and all corporations and persons engaged in such shipments shall become subject to the operation and effect of the laws of such State or Territory constitutes a clear delegation of power to the State to regulate interstate commerce.

While a cursory reading of the opinion in In re Rahrer would tend to give some support to the proposition that Congress could permit the police power of a State to attach, at any stage, to an interstate-commerce shipment, yet in my opinion that case gives no support to that contention. In that case the court was not considering a statute which attempted to give jurisdiction to the State before the completion of an interstate-commerce shipment, but was considering the power of Congress to permit the police power of the State to operate


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