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drafts from the consignees before turning Section 239 of the Penal Code of the over the bills of lading, suitably indorsed, United States refers only to railroad to enable the consignees to obtain delivery carriers, and not to employees. None by the carrier, comes within the condemna- of its provisions covers the conduct of tion of the Criminal Code, § 239, providing the parties in the instant case. for the punishment of any railroad company, express company, or other common carrier, | opinion of the supreme court of Kanor any person who, in connection with the sas, holding that § 239 applied, is in transportation of any intoxicating liquors conflict with and repugnant to the defrom one state into another state, shall cisions of the Federal courts. collect the purchase price or any part thereof before, on, or after delivery, from the consignee or from any other person. [For other cases, see Commerce, IV. b, 2, in

Digest Sup. Ct. 1908.]

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local law. 3. The ruling of a state court that a principal who employs an agent to make collections, in violation of a criminal law, cannot compel the agent to account for what he collects, is not open to re-examination by the Federal Supreme Court on writ

of error to the state court.

First Nat. Bank v. United States, 46 L.R.A. (N.S.) 1139, 124 C. C. A. 256, 206 Fed. 378; 29 Ops. Atty. Gen. 58; Danciger v. Stone, 188 Fed. 510; United States Exp. Co. v. Friedman, 112 C. C. A. 219, 191 Fed. 673; United States v. 87 Barrels of Wine, 180 Fed. 216.

The decision of the supreme court of Kansas is in conflict with and repugnant to the commerce clause of the Constitution of the United States, and the law and doctrines declared and pronounced by this court in the case of Rosenberger v. Pacific Exp. Co. 241 U. S. 48, 60 L. ed. 880, 36 Sup. Ct. Rep. 510, and other recent decisions of this court.

Western U. Teleg. Co. v. Kansas, 216 U. S. 1, 27, 54 L. ed. 355, 366, 30 Sup. Ct. Rep. 190; Sioux Remedy Co. v. Cope, 235 U. S. 197, 203, 59 L. ed. 193, 197, 35 Sup. Ct. Rep. 57; Southern Operating Co. v. Hays, 236 U. S. 188, 59 L. ed. 531, 35 Sup. Ct. Rep. 405; Norfolk & W. R. Co. v. Sims, 191 U. S. 441, 447, 48 L. ed. 254, 256, 24 Sup. Ct. Rep.

[For other cases, see Appeal and Error, 2072-151; Kirmeyer v. Kansas, 236 U. S. 2123, in Digest Sup. Ct. 1908.]

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The facts are stated in the opinion. Mr. Edwin A. Krauthoff submitted the cause for plaintiffs in error. Messrs. Harry L. Jacobs, I. J. Ringolsky, and M. L. Friedman were on the brief:

Shippers' order shipments are legal. Norfolk & W. R. Co. v. Sims, 191 U. S. 441, 447, 48 L. ed. 254, 256, 24 Sup. Ct. Rep. 151; American Exp. Co. v. Iowa, 196 U. S. 133, 143, 49 L. ed. 417, 422, 25 Sup. Ct. Rep. 182.

568, 572, 59 L. ed. 721, 724, 35 Sup. Ct. Rep. 419; American Exp. Co. v. Iowa, 196 U. S. 144, 49 L. ed. 422, 25 Sup. Ct. Rep. 182; Rosenberger v. Pacific Exp. Co. 241 U. S. 48, 60 L. ed. 880, 36 Sup. Ct. Rep. 510; Clark Distilling Co. v. Western Maryland R. Co. 242 U. S. 311, 61 L. ed. 326, L.R.A.1917B, 1218, 37 Sup. Ct. Rep. 180, Ann. Cas. 1917B, 845; Adams Exp. Co. v. Kentucky, 206 U. S. 129, 51 L. ed. 987, 27 Sup. Ct. Rep. 606.

Assuming, arguendo, that the Kansas supreme court's logic as to this case and this statute, not being protected by the commerce clause, because of the Wilson Law, is correct, yet, as Congress has already entered the field, such legislation is exclusive, and § 4399, General Laws of Kansas 1909, conflicting therewith, is invalid.

Palmer v. Southern Exp. Co. 129 Tenn. 116, 165 S. W. 236; Blunk v. Waugh, 32 Okla. 625, 39 L.R.A. (N.S.) 1093, 122 Pac. 717; McCord v. State, 2 Okla. Crim. Rep. 214, 101 Pac. 280.

No brief was filed for defendant in

error.

Mr. Justice Van Devanter delivered the opinion of the court:

reaches and embraces acts done by an agent such as Cooley was in this instance, or is confined to acts of common carriers and their agents, is a question about which there has been some contrariety of opinion, and it is now before this court for the first time. Of course, the chief factor in its solution must be the words of the statute. Omitting what is irrelevant here, they are:

Danciger Brothers, who conducted a mail-order liquor business in Kansas City, Missouri, brought this suit in a Kansas court to recover from Cooley certain moneys collected by him, under an arrangement with them as the purchase price of intoxicating liquors sold by them in interstate commerce, and also to enforce a similar claim assigned to them by another liquor dealer. After issue and trial Cooley prevailed and the judgment was affirmed; the appellate court holding that the arrangement under which the moneys were collected in-one state volved a violation of § 239 of the Criminal Code of the United States, chap. 321, 35 Stat. at L. 1136, Comp. Stat. 1916, § 10,409, and that, applying the settled rule of the Kansas courts, a principal who employs an agent to make collections in violation of a criminal law cannot compel the agent to account for what he collects. 98 Kan. 38, 157 Pac. 453, and 484, 158 Pac. 1119. The case is here on writ of error sued out prior to the Act of September 6, 1916, 39 Stat. at L. 726, chap. 448, Comp. Stat. 1916, § 1207.

These are the facts: During the year 1910 Danciger Brothers received through the mails several orders for whisky from customers in Topeka, Kansas, and in each instance shipped the liquor from Kansas City, Missouri, to Topeka as freight. Each package was consigned to the shipper's order and was to be delivered by the carrier only on the surrender of the bill of lading, properly indorsed. A sight draft was drawn on the customer for the purchase price, and this, with the bill of lading attached, was sent to Cooley under an arrangement whereby he was to collect the draft, was then to hand the bill of lading, [322]| suitably indorsed, to the customer, to enable the latter to get the package from the carrier, and ultimately was to remit to Danciger Brothers the amount collected, less a commission for the service rendered. Before this arrangement was made the banks had refused to make such collections.

The assigned claim need not be separately described, for it was essentially

like the other.

As the transactions occurred before the passage of the Webb-Kenyon Act, March 1, 1913, chap. 90, 37 Stat. at L. 699, Comp. Stat. 1916, § 8739, we are not concerned with it, but only with the situation theretofore existing.

Whether § 239 of the Criminal Code

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"Sec. 239. Any railroad company, express company, or other common rier, or any other person who, in connection with the transportation of any intoxicating liquor . from into any other state, shall collect the purchase price or any part thereof, before, on, or after delivery, from the consignee, or from any other person, or shall in any manner act as the agent of the buyer or seller of any such liquor, for the purpose of buying or selling or completing the sale thereof, saving only in the actual transportation and delivery of the same, shall be fined," etc.

A reference to the conditions existing when the section was enacted, in 1909, will, together with its words, conduce to a right understanding of the evil at which it is aimed and the relief it is intended to afford. The conditions [323] were these: In some of the states there were state-wide laws prohibiting the manufacture and sale of intoxicating liquor; in some there was a like prohibition operative only in particular districts, and in other states the business was lawful. But the prohibitory laws did not reach sales or transportation in interstate commerce, for, under the Constitution of the United States, that was a matter which only Congress could regulate. True, there was a regulation by Congress, known as the Wilson Act, August 8, 1890, chap. 728, 26 Stat. at L. 313, Comp. Stat. 1916, § 8738, which subjected liquor transported into a state to the operation of the laws of the state enacted in the exercise of its police power, but the time when the liquor was thus to come within the operation of those laws was after the shipment arrived at the point of destination and was there delivered by the carrier. Rhodes v. Iowa, 170 U. S. 412, 426, 42 L. ed. 1088, 1096, 18 Sup. Ct. Rep. 664. Thus a state, although able effectively to prohibit the manufacture and sale of liquor within its own territory, was unable to prevent its introduction from other states through the channels of interstate commerce. Of course, the real purpose of the prohib'itory laws was to prevent the use of

liquor by cutting off the means of ob- "When it is considered that the necestaining it. But with the channels of in-sary result of the ruling below was to terstate commerce open, those laws were hold that wherever merchandise shipped failing in their purpose, for dealers in from one state to another is not comstates where it was lawful to sell were pletely delivered to the buyer at the supplying the wants of intending users point of shipment so as to be at his risk in states where manufacture and sale from that moment the movement of such were prohibited. This interstate business merchandise is not interstate commerce, generally was carried on by means of it becomes apparent [325] that the orders transmitted through the mails principle, if sustained, would operate and of shipments made according to materially to cripple if not destroy some plan whereby ultimate delivery was that freedom of commerce between the dependent on payment of the purchase states which it was the great purprice. The plans varied in detail, but pose of the Constitution to promote. not in principle or result. All included If upheld, the doctrine would deprive the collection of the purchase price at a citizen of one state of his right the point of destination before or on to order merchandise from another state delivery. One made the carrier having at the risk of the seller as to dethe shipment the collecting agent; an- livery. It would prevent the citizen of other committed the collections to a sep- one state from shipping into another unarate carrier, the liquor being forwarded less he assumed the risk; it would subject as railroad freight, [324] and the bill contracts made by common carriers, and of lading being sent to an express com- valid by the laws of the state where pany, with instructions to hand it to the made, to the laws of another state, and buyer when the money was paid; and it would remove from the protection of still another made use of an agent, such the interstate commerce clause all goods as Cooley was here, the bill of lading on consignment upon any condition as being sent to him with a sight draft on to delivery, express or implied. Besides, the buyer for the purchase price. In it would also render the commerce clause some instances the liquor was consigned of the Constitution inoperative as to to the buyer and in others to the ship- all that vast body of transactions by per's order, the bill of lading then being which the products of the country move suitably indorsed by the shipper. in the channels of interstate commerce by means of bills of lading to the shipper's order, with drafts for the purchase price attached, and many other transactions essential to the freedom of commerce, by which the complete title to merchandise is postponed by the delivery thereof."

After that decision the matter of further regulating interstate commerce in liquor was much considered in Congress, and as a result of extended hearings

Where the transactions were real, and not merely colorable, the business so conducted was lawful interstate commerce and entitled to protection as such until the sale and transportation were consummated by the delivery of the liquor to the vendee at the point of destination. Such was the decision in this court in American Exp. Co. v. Iowa, 196 U. S. 133, 49 L. ed. 417, 25 Sup. Ct. Rep. 182, a case which arose out of the transportation into the state of Iowa of a collect-conducted by the Committee on the Juon-delivery shipment of liquor ordered from a dealer in Illinois. The supreme court of Iowa had held that, as the sale was to be completed in that state by payment and delivery there, the laws of the state, enacted to prevent sales of liquor therein, applied. This court reversed that ruling and said in the opinion, pp. 143, 144:

"The right of the parties to make a contract in Illinois for the sale and purchase of merchandise, and in doing so to fix by agreement the time when [and] the condition on which the completed title should pass, is beyond question. The shipment from the state of Illinois into the state of Iowa of the merchandise constituted interstate commerce.

diciary of the Senate, that committee, speaking through Senator Knox, proposed the enactment of what afterwards became §§ 238-240 of the Criminal Code. The report of the committee shows that its attention was directed to the practice of shipping liquor from one state into another, to be paid for as a condition to delivery, and that the committee regarded it as an evil which should be met and corrected.

With the conditions just described in mind, we come to examine § 239. It consists of two parts, both relating to liquor transported from one state into another. The first deals with the collection of the purchase price, and [326] the second with acts done "for the purpose of buying or selling or completing

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into any other state, shall collect the purchase price or any part thereof, before, on, or after delivery, from the consignee, or from any other person, shall be fined," etc.

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carriers and their agents, it could be evaded so readily by having other collectors that it would accomplish nothing. The volume of the business and the attending mischief would be unaffected. Doubtless all this was in mind when the statute was drafted, and accounts for its comprehensive terms. That the words "or any other person" are intended to include all persons committing the acts described is, as we think, quite plain.

To be, within the statute it is essential that the act of collecting the purchase price be done "in connection with the transportation of" the liquor. The statute does not say "in the transportation," The words "any railroad company, ex- | but "in connection with" it. Transportapress company, or other common car- tion, as this court often has said, is not rier," comprehend all public carriers; completed until the shipment arrives at and the words "or any other person" are the point of destination and is there deequally broad. When combined they livered. Rhodes v. Iowa, 170 U. S. 412, perfectly express a purpose to include 415, 420, 42 L. ed. 1088, 1092, 1094, 18 all common carriers and all persons; Sup. Ct. Rep. 664; Vance v. W. A. Vanand it does not detract from this view dercook Co. 170 U. S. 438, 451, 42 L. ed. that the inclusion of railroad companies 1100, 1105, 18 Sup. Ct. Rep. 674; Louisand express companies is emphasized by ville & N. R. Co. v. F. W. Cook Brewspecially naming them. To hold that the ing Co. 223 U. S. 70, 82, 56 L. ed. 355, words "or any other person" have the 358, 32 Sup. Ct. Rep. 189; Kirmeyer v. same meaning as if they were, "or any Kansas, 236 U. S. 568, 572, 59 L. ed. 721, agent of a common carrier," would be not 724, 35 Sup. Ct. Rep. 419; Rosenberger merely to depart from the primary rule v. Pacific Exp. Co. 241 U. S. 48, 50, 60 that words are to be taken in their or- L. ed. 880, 883, 36 Sup. Ct. Rep. 510. dinary sense, but to narrow the opera- What Cooley did, while not part of the tion of the statute to an extent that transportation, was closely connected would seriously imperil the accomplish- with it. He was at the point of destinament of its purpose. The rule that tion and held the bill of lading, which where particular words of description carried with it control over the delivery. are followed by general terms, the lat-Conforming to his principal's instructer will be regarded as applicable only tions, he required that the purchase to persons or things of a like class, is invoked in this connection, but it is far from being of universal application, and never is applied when to do so will give to a statute an operation different from that intended by the body enacting it. Is proper office is to give effect to the true intention of that body, not to defeat it. United States v. Mescall, 215 U. S. 26, 54 L. ed. 77, 30 Sup. Ct. Rep.

19.

[327] Without question the practice of collecting the purchase price at the point of destination as a condition to delivery is the thing at which the statute is aimed. Through that practice the sale of liquor in interstate commerce was rapidly increasing. But, as before shown, such collections were not confined to carriers and their agents, but often were made by others. In principle and result there was no difference; the evil was the same in either event. Besides, if the statute were made applicable only to

price be paid before the bill of lading was passed to the vendee. The money was paid under that requirement and he then turned over the bill of lading. A delivery of the shipment [328] followed and that completed the transportation. Had the carrier done what he did, all would agree that the requisite connection was present. As the true test of its presence is the relation of the collection, rather than the collector, to the transportation, it would seem to be equally present here.

We conclude that § 239 reaches and embraces acts done by an agent such as Cooley was. The ruling on the right of a principal to recover from an agent money received by the latter in carrying out an arrangement between them which involved the violation of a criminal statute turned on a question of local law and cannot be re-examined here. Judgment affirmed.

DANIEL J. LEARY, Appt.,

V.

MAYOR AND ALDERMEN OF THE CITY OF JERSEY CITY and the City Collector of the City of Jersey City.

(See S. C. Reporter's ed. 328-334.)

States

waters

compacts as to boundary taxation of bed.

1. Lands lying beneath the waters of New York bay, adjacent to the New Jersey shore, are taxable by New Jersey, notwithstanding the provisions of the compact be tween the states of New York and New Jersey, fixing the boundary line as the middle of New York bay, approved by Congress by the Act of June 28, 1834 (4 Stat. at L. 708, chap. 126), by which New York is given "exclusive jurisdiction of and over all the waters of the bay of New York," and "of and over the land covered by the said waters to the low-water mark" on the New Jersey side, subject to the exclusive right of property in New Jersey "in and to the land under water lying west of the middle of the bay," and to her exclusive jurisdiction over the wharves, docks, and improvements made, or to be made, on her shore, and to her exclusive right to regulate the fisheries on the west of the middle of said waters.

[For other cases, see States, VII. b, in Digest Sup. Ct. 1908.]

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Taxes

lessee

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submerged lands. 3. An estate in fee (subject only to a rent charge), making the lands taxable in the hands of the grantee, was created by an instrument by which the New Jersey riparian commissioners bargain, sell, lease, and convey to the grantee, its successors and assigns forever, certain described submerged lands, together with the right, liberty, privilege, and franchise to exclude the tide water from the lands described by filling in or otherwise improving the same, and to appropriate such lands to private use, and habendum to the grantee, its successors and assigns forever, subject to the payment of the rent specified, with the right of re-entry reserved for nonpayment, and a covenant for a conveyance free and

discharged of the rent upon payment of a stipulated gross sum.

[For other cases, see Taxes, I. c, 1; Deeds, III. d, in Digest Sup. Ct. 1908.]

[No. 3.]

Argued November 12 and 13, 1918. Decided January 7, 1919.

APPEAL from the United States Circuit Court of Appeals for the Third Circuit to review a decree which affirmed a decree of the District Court for the District of New Jersey, dismissing the bill in a suit to remove a cloud upon title arising from certain asserted tax liens. Affirmed.

See same case below, 126 C. C. A. 12, 208 Fed. 854.

The facts are stated in the opinion. Mr. John M. Enright argued the cause and filed a brief for appellant:

The lease in question grants the submerged lands (whether by way of lease or in fee is immaterial under this head) with the right, liberty, privilege, and franchise to exclude the tide water from so much of the lands as lie under water, by filling in or otherwise improving the same, and to appropriate the land to their exclusive private use. Such grant confers a mere license to reclaim, which, although vested, does not constitute the licensee an owner of the land, or extinguish the rights of the public therein unless and until the license is executed by actual reclamation. Such interest as the lessee has before reclamation is insufficient to sustain taxation against him as the owner of the land.

Bell v. Gough, 23 N. J. L. 624; State, New York, L. E. & W. R. Co., Prosecutor, v. Yard, 43 N. J. L. 636; Heiney v. Nolan, 75 N. J. L. 397, 67 Atl. 1008; Polhemus v. Bateman, 60 N. J. L. 163, 37 Atl. 1015; Long Dock Co. v. Board of Equalization, 87 N. J. L. 22, 93 Atl. 111; Long Dock Co. v. State Assessors, 89 N. J. L. 108, 97 Atl. 900, 90 N. J. L. 702, 101 Atl. 367.

Mr. Merritt Lane also filed a brief for appellant:

The instrument in the case at bar is a lease, and not a grant of a fee.

Chase's Bl. Com. p. 464, p. 318; 18 Am. & Eng. Ene. Law, 611; Folts v. Huntley, 7 Wend. 210; State, Morris Canal & Bkg. Co., Prosecutor, v. Height, 36 N. J. L. 475; Polhemus v. Bateman, Note.-On jurisdiction over boundary 60 N. J. L. 166, 37 Atl. 1015; Woodcliff rivers-see notes to State v. Moyers, 41 Land Improv. Co. v. New Jersey Shore L.R.A. (N.S.) 366, and Roberts v. Ful-Line R. Co. 72 N. J. L. 137, 60 Atl. lerton, 65 L.R.A. 953. 44; Stevens v. Paterson & N. R. Co. 34

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