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facts was stipulated admitting the receipt, | court of Iowa in this case. True, also, a holding of the pack-writ of error was prosecuted from this court The seizure was sus- to the Vermont court upon the assumption taken to a district that the commerce clause of the Constitution was involved, but this court dismissed the writ of error because it did not appear that the commerce clause of the Constitution was relied on in the state court, was in any way called to the attention of that court, or was passed upon by it. As on this record it appears that the protection of the commerce clause was directly invoked in the state court, it is apparent that the O'Neil

the carriage, and the
ages as above stated.
tained. Appeal was
court. The express company and its agent
amended their answer, specially setting up
the commerce clause of the Constitution of
the United States. There was judgment in
favor of the express company, and the state
of lowa appealed to the supreme court and
obtained a reversal. 118 Iowa, 447, 92 N.
W. 66. This writ of error was prosecuted.

Mr. Lewis Cass Ledyard for plaintiffs Case is inapposite. And as, in order to dein error.

cide the contention that the judgment be

Mr. Charles W. Mullan for defendant low rests upon an adequate non-Federal in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

ground, we must necessarily consider how far the C. O. D. shipment was protected by the commerce clause of the Constitution, which is the question on the merits, we pass from the motion to dismiss to the consideration of the rights asserted under the commerce clause of the Constitution.

We can best dispose of such asserted rights by a brief reference to some of the controlling adjudications of this court.

In Bowman v. Chicago & N. W. R. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062, it was held that the statutes of Iowa forbidding common carriers from bringing intoxicating liquors into the state of Iowa from another state or territory without obtaining a certificate required by the laws of Iowa was void, as being a regulation of commerce between the states, and, therefore, that those laws did not justify a common carrier in Illinois from refusing to receive and transport intoxicating liquors consigned to a point within the state of Iowa.

Although the majority of the supreme court of Iowa doubted the correctness of a ruling previously made by that court, nevertheless it was adhered to under the rule of stare decisis, and was made the basis of the decision in this cause. In the previous case it was held by the supreme court of Iowa that, where merchandise was received by a carrier with a duty to collect the price on delivery to the consignee, the merchandise remained the property of the consignor, and was held by the carrier as his agent with authority to complete the sale. Upon this premise it was decided that intoxicating liquors shipped C. O. D. from another state were subject to be seized on their arrival in Iowa, in the hands of the express company. Sustaining, upon this principle, the seizure in this case, the supreme court of Iowa did not expressly consider the defense based on the commerce clause of the Constitution of the United States, because the court deemed that its ruling on the subject of the effect of the C. O. D. shipment was a wholly non-state, could not be made to apply to liquors Federal ground, broad enough to sustain the conclusion reached. And this the court considered was sanctioned by O'Neil v. Vermont, 144 U. S. 324, 36 L. ed. 450, 12 Sup. Ct. Rep. 693.

In Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681, it was held that a law of the state of Iowa, forbidding the sale of liquor in that

shipped from another state into Iowa, before the merchandise had been delivered in Iowa, and there sold in the original package, without causing the statute to be a regulation of commerce, repugnant to the Constitution In accord with the opinion of the supreme of the United States. In Rhodes v. Iowa, court of Iowa it is insisted at bar that this 170 U. S. 412, 42 L. ed. 1088, 18 Sup. Ct. writ of error should be dismissed for want Rep. 664, the same doctrine was reiterated, of jurisdiction, because the decision below except that it was qualified to the extent involved no Federal question, and the case called for by the provisions of the act of of O'Neil v. Vermont, 144 U. S. 324, 36 L. Congress of August 8, 1891 (26 Stat. at L. ed. 450, 12 Sup. Ct. Rep. 693, is relied upon. 313, chap. 728, U. S. Comp. Stat. 1901, p. The contention is untenable. As pointed 3177), commonly known as the Wilson act. out in Norfolk & W. R. Co. v. Sims, 191 U. In that case a shipment of intoxicating S. 446, 48 L. ed. 256, 24 Sup. Ct. Rep. 151, liquors had been made into the state of the view taken of the O'Neil Case is a mis- Iowa from another state, and the agent of taken one. True, in that case the supreme the ultimate railroad carrier in Iowa was court of Vermont gave to a C. O. D. shipment proceeded against for an alleged violation the effect attributed to it by the supreme' of the Iowa law, because, when the merchan.

But we need not consider this subject. Beyond possible question, the contract to

dise reached its destination in Iowa, he had moved the package from the car in which it had been transported to a freight depot, pre-sell and ship was completed in Illinois. The paratory to delivery to the consignee. The contention was that, as by the Wilson act, the power of the state operated upon the property the moment it passed the state boundary line; therefore the state of Iowa had the right to forbid the transportation of the merchandise within the state, and to punish those carrying it therein. This was not sustained. The court declined to express an opinion as to the authority of Congress, under its power to regulate commerce, to delegate to the states the right to forbid the transportation of merchandise from one state to another. It was, however, decided that the Wilson act manifested no attempt on the part of Congress to exert such power, but was only a regulation of commerce, since it merely provided, in the case of intoxicating liquors, that such merchandise, when transported from one state to another, should lose its character as interstate commerce upon completion of delivery under the contract of interstate shipment, and before sale in the original packages.

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 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. To sustain, therefore, the ruling of the court below would require us to decide that the law of Iowa operated in another state so as to invalidate a lawful contract as to interstate commerce made in such other state; and, indeed, would require us to go yet further, and say that, although, under the interstate commerce clause, a citizen in one state had a right to have merchandise consigned from another state delivered to him in the state to which the shipment was made, yet that such right was so illusory that it only obtained in cases where, in a legal sense, the merchandise contracted for had been delivered to the consignee at the time and place of shipment.

When it is considered that the necessary The doctrine of the foregoing cases was result of the ruling below was to hold that, applied in Vance v. W. A. Vandercook Co. wherever merchandise shipped from one 170 U. S. 438, 442, 42 L. ed. 1100, 1102, 18 state to another is not completely delivered Sup. Ct. Rep. 674, to the right of a citizen to the buyer at the point of shipment so as of South Carolina to order from another to be at his risk from that moment, the state, for his own use, merchandise, con- movement of such merchandise is not intersisting of intoxicating liquors, to be deliv-state commerce, it becomes apparent that ered in the state of South Carolina.

the principle, if sustained, would operate Coming to test the ruling of the court be- materially to cripple, if not destroy, that low by the settled construction of the com- freedom of commerce between the states merce clause of the Constitution, expounded which it was the great purpose of the Conin the cases just reviewed, the error of its stitution to promote. If upheld, the docconclusion is manifest. Those cases rested trine would deprive a citizen of one state of upon the broad principle of the freedom of his right to order merchandise from another commerce between the states, and of the state at the risk of the seller as to delivright of a citizen of one state to freely con- ery. It would prevent the citizen of one tract to receive merchandise from another state from shipping into another unless he state, and of the equal right of the citizen assumed the risk; it would subject conof a state to contract to send merchandise tracts made by common carriers, and valid into other states. They rested, also, upon by the laws of the state where made, to the the obvious want of power of one state to laws of another state; and it would remove destroy contracts concerning interstate com- from the protection of the interstate commerce, valid in the states where made. merce clause all goods on consignment upon True, as suggested by the court below, there any condition as to delivery, express or imhas been a diversity of opinion concerning plied. Besides, it would also render the the effect of a C. O. D. shipment, some commerce clause of the Constitution inopcourts holding that, under such a shipment, erative as to all that vast body of transacthe property is at the risk of the buyer, and tions by which the products of the country therefore that delivery is completed when move in the channels of interstate commerce the merchandise reaches the hands of the by means of bills of lading to the shipper's carrier for transportation; others deciding order, with drafts for the purchase price atthat the merchandise is at the risk of the tached, and many other transactions essenseller, and that the sale is not completed tial to the freedom of commerce, by which until the payment of the price, and deliv- the complete title to merchandise is postery to the consignee, at the point of destina-poned to the delivery thereof.

tion.

But general considerations need not be

by them. The sewing machine was made and sold in another state, shipped to North Carolina in its original package for delivery to the consignee upon payment of its price. It had never become commingled with the general mass of property within the state. While technically the title of the machine may not have passed until the price was paid, the sale was actually made in Chicago; and the fact that the price was to be collected in North Carolina is too slender a thread upon which to hang an exception of the transaction from a rule which would otherwise declare the tax to be an interference with interstate commerce."

further adverted to in view of prior deci- | almost too numerous for citation, and the sions of this court relating to the identical one under consideration is clearly controlled question here presented. In Caldwell v. North Carolina, 187 U. S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep. 229, the facts were these: The Chicago Portrait Company shipped to Greensboro, North Carolina, by rail, consigned to its order, certain pictures and frames. At Greensboro the company had an agent who received the merchandise, put the pictures and frames together, and delivered them to the purchasers who had ordered them from Chicago. The contention was that the portrait company was liable to a license charge imposed by the town of Greensboro for selling pictures therein, and this was supported by the argument that, although the contract for sale was made in Chicago, it was completed in North Carolina by the assembling of the pictures and frames, and the delivery there made. It was held that the license could not be collected, because the transaction was an interstate commerce one. In the course of the opinion, after a full review of the authorities, it was observed (p. 632, L. ed. p. 341, Sup. Ct. Rep. p. 233):

"It would seem evident that if the vendor had sent the articles by an express company, which should collect on delivery, such a mode of delivery would not have subjected the transaction to state taxation. The same could be said if the vendor himself, or by a personal agent, had carried and delivered the goods to the purchaser. That the articles were sent as freight, by rail, and were received at the railroad station by an agent, who delivered them to the respective purchasers, in nowise changes the character of the commerce as interstate."

The controlling force of the two cases last reviewed upon this becomes doubly manifest when it is borne in mind that the power of the states to levy general and undiscriminating taxes on merchandise shipped from one state into another may attach to such merchandise before sale in the original package when the merchandise has become at rest within the state, and therefore enjoys the protection of its laws, and this upon the well-recognized distinction that the movement of merchandise from state to state, whilst constituting interstate commerce, is not an import in the technical sense of the Constitution. American Steel & Wire Co. v. Speed, 192 U. S. 500, 48 L. ed. 538, 24 Sup. Ct. Rep. 365.

As from the foregoing considerations it results that the court below erred in refusing to apply and enforce the commerce clause of the Constitution of the United States, its judgment must be reversed.

The judgment of the Supreme Court of Iowa is reversed, and the cause is remanded to that court for proceedings not inconsist ent with this opinion.

Mr. Justice Harlan dissents.

In Norfolk & W. R. Co. v. Sims, 191 U. S. 441, 48 L. ed. 254, 24 Sup. Ct. Rep. 151, these were the facts: A resident of North Carolina ordered from a corporation in Chicago a sewing machine. The machine was shipped under a bill of lading to the order of the buyer, but this bill of lading was sent to the express agent at the point of delivery in North Carolina, with instructions ADAMS EXPRESS COMPANY, Plff. in

to surrender the bill on payment of a C. O. D. charge. The contention was that the consummation of the transaction by the express agent in transferring the bill of lading upon payment of the C. O. D. charge was a sale of the machine in North Carolina, which subjected the company to a license tax.

The contention was held untenable. Calling attention to the fact that the contract of sale was completed as a contract in Chicago, and after reviewing some of the authorities on the subject of interstate commerce, the court said (p. 450, L. ed. p. 258, Sup. Ct. Rep. p. 154):

"Indeed, the cases upon this subject are

Err., บ.

(196 U. S. 147)

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See same case below (Iowa), 95 N. W. against the American Express Company, 1129.

The facts are stated in the opinion.

Mr. Lawrence Maxwell, Jr., for plaintiff in error.

and at bar it was conceded that the issues in this case "are identical in every particular" with those which were involved in that case. As we have just reversed the judg

Mr. Charles W. Mullan for defendant ment of the supreme court of Iowa in the in error.

Mr. Justice White delivered the opinion

of the court:

American Express Company Case (196 U. S. 133, 25 Sup. Ct. Rep. 182, 49 L. ed. 417), it follows, for the reasons stated in This was an indictment against the Ad-in this must also be reversed. the opinion in that case, that the judgment ams Express Company, in a court of Iowa, The judgment of the Supreme Court of for maintaining a nuisance in violation of Iowa is reversed, and the cause is remanded a section of the Code of that state. It was to that court for proceedings not inconsischarged in the indictment, in substance, that tent with this opinion. the Adams Express Company, between July and December, 1900, at St. Charles, Madison county, Iowa, used a building for the purpose of selling intoxicating liquors therein, contrary to law, and that the company owned and kept in said building intoxicating liquors with the intent unlawfully to sell them within the state, contrary to an Iowa statute. There was a plea of not guilty, a trial and verdict of guilty, and a sentence imposing a fine of $350 and costs.

An agreed statement of facts was stipulated, from which it appears that the Adams Express Company was a common carrier, engaged in the express business between the states of Missouri and Iowa; that it received the liquor in question at St. Joseph, Missouri, to be carried to St. Charles, Iowa, there to be delivered to the consignees, whose names were upon the packages, and that each and all were marked C. O. D.,meaning that they were not to be delivered by the express company to the consignees until the purchase price and the express charges were paid to the agent of the express company. It was further recited in the statement of facts that the only connection of the Adams Express Company with the transaction or transactions in relation to said liquors was as a common carrier, having received the same in Missouri for carriage to the consignees at St. Charles,

Iowa.

Mr. Justice Harlan dissents.

(196 U. S. 175).

ADOLFO SIXTO, Plff. in Err.,

v.

LAUREANO SARRIA.

Payment-effect of, to discharge liability when made pursuant to decree-trialprovince of court and jury.

1. Payments by a mortgagor to the person who has been decreed the heir ab intestato of the mortgagee in proceedings under the Porto Rico Code, §§ 976-980, are not made at the risk of being required to respond to others. who may subsequently be found to be coheirs because the decree expressly reserved the rights of third parties.

2. Payment of debts due an intestate to the legally declared heirs is not made at the risk of being required to respond to others who may within five years establish a right to the property, because the Porto Rico Mortgage Law provides that property acquired through. inheritance or legacy cannot be cleared until five years from the date of recording; but the effect of the proceedings to designate the heirs ab intestato is, under the Porto Rico Code, § 1000, 1001, to permit them, after final decision, to receive and collect the estate.

3.

Payment into court of sums due under a

mortgage, pending proceedings under Porto Rico Code, §§ 976-980, to have the petitioner declared sole heir ab intestato of the mortgagee, discharged the obligation, where made under an order of the court and before any proceedings were begun to establish the rights of an alleged coheir.

The trial court charged the jury, in substance, that if, from the evidence, it appeared, beyond a reasonable doubt, that the defendant express company held at its depot, for delivery to the consignees, pack- 4. The validity of a payment on the principal ages of liquor shipped from other states,

of a mortgage to the person who has been.

decreed the sole heir ab intestato of the mortgagee in proceedings taken under Porto Rico Code, § 976-980, is a question for the jury, more than one month before maturity, and after an unsuccessful attempt by a son of the mortgagee, whose relationship was well known to the mortgagor, to establish his rights by invoking the "voluntary jurisdiction" of the court, and on the same day on which he began a "contentious" proceeding, which the court had held was his only remedy, making the adjudged heir a party defendant, and seeking an order requiring the registrar to make a cautionary entry concerning the mortgaged property, and requiring the mortgagor to retain, at the disposition of the court, whatever sums he owed to the mortgagee's estate.

where the evidence shows that it was made

5. After a judgment of an appellate court reInstating an order of the court below by which instalments due under a mortgage had

been directed to be paid into court, pending the determination of the rights of a party claiming to be an heir of the mortgagee, who had died intestate, the mortgagor, acting with full knowledge of this decision of the higher court, cannot discharge his liability by obtaining an order from the lower court permitting the withdrawal of his deposit to pay an assignee of the mortgage, and by paying such assignee pursuant to a decree in a suit to which the alleged heir was not a party.

[No. 40.]

tion contained the usual averments in as

sumpsit, of promise and default. The defendant filed a plea and amended plea to this declaration, which set up the general issue, and for further plea averred:

"And for a further and second plea to the said declaration, the defendant says that on the fifteenth day of May, eighteen hundred and ninety-two, the defendant became indebted in the sum of sixteen thousand dollars (16,000) Mexican dollars, money then current in Porto Rico, to one Manuel Sixto, on account of the purchase price of a farm situated in the island of Vieques, district of Porto Rico, and called 'Monte Santo;' that on the said fifteenth day of May, eighteen hundred and ninety-two, the defendant made and constituted a mortgage upon the said farm in favor of the said Sixto, as security for the payment of the aforesaid amount of sixteen thousand (16,000) Mexican dollars, together with a certain interest as stipulated in the said instrument of mortgage; that thereafter the said mortgage was duly registered in the registry of property of Humacao, Porto Rico, on the eleventh day of July, eighteen hundred and ninety-two; that the payment of the aforesaid sum of sixteen thousand (16,000) Mexican dollars, as provided for in the said instrument of

Submitted November 3, 1904. Decided Jan- mortgage, was to be made in the manner fol

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lowing, to wit: Four thousand (4,000) dollars on the fifteenth day of May, eighteen hundred and ninety-three, and four thousand (4,000) dollars on the fifteenth day of May of the years eighteen hundred and ninety-four, eighteen hundred and ninetyfive, and eighteen hundred and ninety-six. And the defendant further says that the aforesaid Emanuel Sixto departed this life on the twenty-seventh day of November, eighteen hundred and ninety-two, before any of the instalments aforesaid had fallen due; that the said Sixto died intestate, and soon after his death, to wit, in the year eighteen hundred and ninety-three, judicial proceed

This is a writ of error bringing in review the proceedings of the district court of the United States for the district of Porto Rico. The original action was in assumpsit, brought by Adolfo Sixto, an alien and a subject of the King of Spain, against Laureano Sarria, a citizen of Porto Rico. The dec-ings touching and respecting the settlement laration set forth in substance:

That on November 27, 1892, the defendant was indebted to one Manuel Sixto, since deceased, in the sum of $16,000, Spanish money, with interest from May 15 of the same year, which sum said Sarria had promised to pay in four annual instalments, falling due respectively on the 15th day of May of each and every year from 1893 until 1896, inclusive. That the said Manuel Sixto departed this life on November 27, 1892, leaving two children, plaintiff and one Maria Belen Sixto Melendez, as his heirs at law. That as such heir the plaintiff was entitled to one half of the indebtedness of $16,000, Spanish money, with interest at the rate of 8 per cent from May 15, 1892. The declara

and inheritance of the estate of the said Manuel Sixto, deceased, and which said proceedings are known in the law of Porto Rico as 'proceedings ab intestato,' were instituted in the court of first instance of Humacao, Porto Rico, the said court being then and there a court of record and of general jurisdiction; and the said court in said proceedings by a decree dated the fifteenth day of June, eighteen hundred and ninety-three, ordered the said defendant to pay into and deposit with the said court all sums of money then due by the said defendant to the said estate of the said Manuel Sixto, deceased, by virtue of the aforesaid mortgage; and the defendant thereupon and in obedience to the said order of the said court did, on the

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