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under the statute of limitations of the, tion between personal actions and real acstate, were not set up. The Spokane & tions is useful to observe. Herman, EstonPalouse Railway Company, however, al-pel, 92. It is there said: “Although there leged that it and the other plaintiffs in the may be several different claims for the suit bad a title in fee simple, and prayed, same thing, there can be only one right of in the most comprehensive and detailed way, property in it; therefore, when a cause of to have it quieted against the claims of action has resulted in favor of the dethe defendant in error, which, it was al. fendant, when the plaintiff claims the propleged, were threatened to be asserted by erty of a certain thing there can be no suits and by force without suit. The ques- other action maintained against the same tion now to be decided is, Is the decree in party for the same property, for that would the suit res judicata? Against this effect be to renew the question already decided; of the decree the railway company urges for the single question in litigation was that it was rendered on demurrer and "the whether the property belonged to the plainestoppel extends only to the very point tiff or not; and it is of no importance that raised in the pleading, and does not bar the plaintiff failed to set up all his rights another action based upon other facts." upon which his cause of action could have The effect of the decree, it is insisted, was been maintained; it is sufficient that it only to decide against the title specially might have been litigated.” set forth in the pleading. And further, "in In United States v. California & O. Land this action [that at bar] the right as- Co. 192 U. S. 355, 48 L. ed. 476, 24 Sup. Ct. serted is a perpetual easement or way by Rep. 266, this principle was applied. In virtue of the act of 1875 through the lands that case a decree rendered upon a bill in involved in the former suit. Not only was equity brought under an act of Congress to this right not pleaded in the former com- have patents for land declared void, as forplaint, but under it the title now asserted feited, and to establish the title of the United could not have been proved." To sustain States to the land, was held to be a bar to these conclusions the following authorities a subsequent bill brought against the same are cited: Wiggins Ferry Co. v. Ohio & defendants to recover the same land, on M. R. Co. 142 U. S. 396, 410, 35 L. ed. 1055, the ground that it was excepted from the 1060, 12 Sup. Ct. Rep. 188; Gilman v. Rives, original grant as an Indian reservation. 10 Pet. 298, 9 L. ed. 432; Freeman, Judgm. And, speaking of the two suits, we said, 4th ed. 267; Van Fleet, Former Adjudica- by Mr. Justice Holmes: “The best that tion, $ 306 and following.

can be said, apart from the act just quoted, The citations are not apposite to the pres- to distinguish the two suits, is that now ent controversy. It is well established that the United States puts forward a new a judgment on demurrer is as conclusive as ground for its prayer. Formerly it sought one rendered upon proof. Gould v. Evans. to avoid the patents by way of forfeiture. ville & C. R. Co. 91 U. S. 526, 23 L. ed. Now it seeks the same conclusion by a dif416; Bissell v. Spring Valley Twp. 124 U. ferent means; that is to say, by evidence S. 225, 31 L. ed. 411, 8 Sup. Ct. Rep. 495; that the lands originally were excepted Freeman, Judgm. § 267. The question as from the grant. But in this, as in the to such judgment when pleaded in bar of former suit, it seeks to establish its own another action will be necessarily its legal title to the fee.” And further: “But the identity with such action. The general rule whole tendency of our decisions is to reof the extent of the bar is not only what quire a plaintiff to try his whole cause of was pleaded or litigated, but what could action and his whole case at one time. He have been pleaded or litigated. There is cannot even split up his claim (Fetter v.

. a difference between the effect of a judg- Beale, 1 Salk. 11; Trask v. Hartford & N. ment as a bar against the prosecution of H. R. Co. 2 Allen, 331; Freeman, Judgm. a second action for the same claim or de 4th ed. S$ 238, 241); and, a fortiori, he canmand, and its effect as an estoppel in not divide the grounds of recovery." another action between the same parties This doctrine has illustrations in suits to upon another claim or demand (Cromwell quiet title. It was decided in Parrish v. v. Sac County, 94 U. S. 351, 24 L. ed. 195; Ferris (Doe ex dem. Parrish v. Ferris) 2 Bissell v. Spring Valley Twp. supra; New Black, 606, 17 L. ed. 317, that the judgment Orleans v. Citizens' Bank, 167 U. S. 396, in an action to quiet title is conclusive of 42 L. ed. 210, 17 Sup. Ct. Rep. 905; Southern the title, whether adverse to the plaintiff in P. R. Co. v. United States, 168 U. S. 1, 42 L. the action or to the defendant. In other ed. 355, 18 Sup. Ct. Rep. 18; Gunter v. At- words, determines the merits of the plainlantic Coast Line R. Co. 200 U. S. 273, 50 tiff's title as well as that of the defendant. L. ed. 477, 26 Sup. Ct. Rep. 252; Deposit In Indiana, B. & W.R. Co. v. Allen, 113 Ind. Bank v. Frankfort, 191 U. S. 499, 48 L. ed. 581, 15 N. E. 446, it was held that the rail. 276, 24 Sup. Ct. Rep. 154); and a distinc-way company could not assert against & judgment decreeing title in the plaintiff in mence to run before the patent issued, and such an action the right to construct and we have also assumed that rights under it maintain a railway over it. And in Da were complete in the Spokane & Palouse vis v. Lennen [125 Ind. 185, 24 IN

24 N. Railway Company at the time of its suit E. 885], it was decided that every possible against Slaght. Lest the latter assumption interest of a defendant is cut off. And be questioned it may be well to determine necessarily every possible interest of the whether the other assumption be true. The plaintiff is cut off if the judgment is in supreme court decided against it on the aufavor of the defendant. Parrish v. Ferris, thority of Gibson v. Chouteau, 13 Wall. supra.

92, 20 L. ed. 534, and Redfield v. Parks, 132 The Spokane & Palouse Railway Com- U. S. 239, 33 L. ed. 327, 10 Sup. Ct. Rep. pany alleged a title in fee simple, and the 83; that is, decided that the statute did truth of the allegation could be determined not commence to run until the patent isas well by demurrer as by proof, and the sued to Slaght, and that, therefore, this same legal consequences followed from it. action was not barred. The ruling, we Clearwater v. Meredith (Ferguson v. Mere- think, was right. The act of Congress of dith) 1 Wall. 25, 17 L. ed. 604; Goodrich 1875 and the statute of limitations are inV. Chicago, 5 Wall. 566, 18 L. ed. 511; dependent defenses, and, being so, the latAurora v. West, 7 Wall. 82, 19 L. ed. 42; ter comes within the rule announced. Of Black, Judgm. § 707; Freeman, Judgm. course, if the act of Congress of 1875 was 267, and cases herein before cited. The rec- a grant of the right of way in præsenti, ord shows that the demurrer was not upon “conveying a good title when the road was merely formal or technical defects, but went completed,” as contended, it needs no aid to the merits. It was directed to the sec- from the statute of limitations, and would ond amended complaint of the plaintiffs. be an effectual defense if it were not They elected to stand on that complaint, barred by the judgment which we have conand declined to plead further. They assert- sidered. ed its sufficiency by an appeal to the su

Judgment affirmed. preme court of the state and again to this court, and met defeat in both, as we have seen. Whether the Spokane & Palouse Railway Company could have pleaded, in NORTHERN PACIFIC RAILWAY COM. addition to the right it alleged under the

PANY et al. deed from Powers, the rights that plaintiffs in error contend it acquired under the

ARGARET SLAGHT. act of Congress of 1875, or the statute of limitations of the state, we need not deter- Northern P. R. Co. v. Slaght, ante, p. 442.

This case is governed by the decision in mine. See $$ 97, 120, 14 L. ed. 942 et seq.; Story, Eq. Pl.; Smith v. Swormstedt,

[No. 153.] 16 How. 288, 14 L. ed. 942. It elected between those rights and rights under the Argued and submitted January 11, 1907. DePowers deed, and we think its grantee is

cided March 11, 1907. now bound by that election. The interest that the Spokane & Palouse Railway

N ERROR Supreme Court of the

to of way, which is now claimed by plaintiff ment which affirmed a judgment of the in error. In other words, plaintiff in er- Superior Court in and for the County of ror, as successor of the Spokane & Palouse Whitman, in that state, in favor of plainRailway Company, again asserts title to tiff in an action of ejectment. Affirmed. the very property that was the subject of Messrs. Charles W. Bunn and James B. the other suit, the source of title, only, be- Kerr for plaintiffs in error. ing different. If this may be done, how .

No counsel for defendant in error. often may it be repeated ? If defeated upon the new title, may plaintiff in error assert Mr. Justice McKenna delivered the opinstill another one, either in its predecessor ion of the court: or in itself, and repeat as often as it may This case was submitted with No. 152, vary its claim? The principle of res judi- the questions being identical. On the aucata and the cases enforcing and illustrat- thority of that case the judgment is af

firmed. ing that principle declare otherwise.

In the discussion thus far we have assumed, as contended by plaintiff in error, Mr. Justice Brewer took no part in the that the statute of limitations could com- I decision of these cases.


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JAY DELAMATER, Plff. in Err., prisonment, or both, in the discretion of

the court. Delamater, not having paid the STATE OF SOUTH DAKOTA. license charge, was prosecuted under the

statute. At the trial, although the unconCommerce—in intoxicating liquors—license tradicted proof established the carrying on

tax on traveling salesmen-Wilson act. of business within the state, as above men. by a state law upon the business of selling tioned, Delamater requested a binding inor offering for sale intoxicating liquors with struction to the jury in his favor, on the in the state by any traveling salesman who ground that the statute did not apply, and solicits orders in quantities of less than if it did, that it was void because repugnant 5 gallons cannot be regarded, when applied to the commerce clause of the Constitution to interstate transactions, _repugnant to of the United States. Exception was taken the commerce clause of the Federal Consti- to the refusal to give the instruction. The tution, in view of the provisions of the Federal ground was reiterated in motions Wilson act of August 8, 1890 (26 Stat. at to arrest and for a new trial, and the suL. 313, chap. 728, U. S. Comp. Stat. 1901, p. 3177), that intoxicating liquors coming preme court of the state, to which the cause into the state shall be as completely under was taken, in affirming the judgment of its control as if manufactured therein. * conviction, expressly considered and dis

posed of such Federal ground. 104 N. W. [No. 149.]

537. Argued January 10, 11, 1907. Decided proposition that the state statute, as con

All the assignments of error involve the March 11, 1907.

strued and applied by the court below, is reN ERROR to the Supreme Court of the pugnant to the commerce clause of the ConState of South Dakota to review a judg

stitution. It is manifest, as the subject ment which affirmed a conviction in the Cirdealt with is intoxicating liquors, that the cuit Court of Potter County, in that state, decision of the cause does not require us of soliciting orders for intoxicating liquors to determine whether the restraints which without having paid the annual license fee the statute imposes would be a direct burimposed by the law of the state. Affirmed. den on interstate commerce if generally ap

See same case below (S. D.) 104 N. W. plied to subjects of such commerce, but 537.

only to decide whether such restraints are a The facts are stated in the opinion.

direct burden on interstate commerce in inMr. Herbert Jackson for plaintiff in error. / toxicating liquors as regulated by Congress Messrs. Aubrey Lawrence, S. M. Howard,

in the act commonly known as the Wilson and Philo Hall for defendant in error.

act. 26 Stat. at L. 313, chap. 728, U. S.

Comp. Stat. 1901, p. 3177. For this reason Mr. Justice White delivered the opinion we at once put out of view decisions of this of the court:

court, which are referred to in argument A firm established in St. Paul, Minnesota, and which are noted in the margin,t bewhich was engaged in dealing in intoxicat cause they concerned only the power of a ing liquors, employed Delamater, the plain- state to deal with articles of interstate tiff in error, as a traveling salesman. As commerce other than intoxicating liquors, such salesman Delamater, in the state of

Robbins v. Taxing District, 120 U. S. South Dakota, carried on the business of 489, 30 L. ed. 694, 1 Inters. Com. Rep. 45, soliciting orders from residents of that state 7 Sup. Ct. Rep. 592; Corson v. Maryland, for the purchase, from the firm in St. Paul, 120 U. S. 502, 30 L: ed. 199, 1 Inters. Com. of intoxicating liquors in quantities of less Rep. 50, 7 Sup. Ct. Rep. 655; Asher v. Texthan 5 gallons. The course of dealing was as, 128 U. S. 129, 32 L. ed. 368, 2 Inters. this: The orders were procured in the form Com. Rep. 241, 9 Sup. Ct. Rep. 1; Stoutenof proposals to buy, and when accepted by burgh v. Hennick, 129 U. S. 141, 32 L. ed. the firm the liquor was shipped from St. 135' ů. S. 100, 34 L. ed. 128, 3 Inters. Com.

637, 9 Sup. Ct. Rep. 256; Leisy v. Hardin, Paul to the persons in South Dakota who Rep. 36, 10 Sup. Ct. Rep. 681; Lyng v: made the proposals, at their risk and cost, Michigan, 135 U. S. 161, 34 L. ed. "150, 3 on sixty days' credit. At the time Delama- Inters. Com. Rep. 143, 10. Sup. Ct. Rep. 725; ter engaged in South Dakota in the busi. Crutcher v. Kentucky, 141 U. S. 47, 35 L. ness just stated the law of that state imed. 649, 11 Sup. Ct. Rep. 851; Brennan v. posed an annual license charge upon “the Titusville, 153 U. S. 289, 38 L. ed. 719, 4 business of selling or offering for sale” in- Inters. Com. Rep. 658, 14 Sup. Ct. Rep. 829; toxicating liquors within the state, “by any 47 L. ed. 336, 23 Sup. Ct. Rep. 229; Norfolk

Caldwell v. North Carolina, 187 U. S. 622, traveling salesman who solicits orders by & W. R. Co. v. Sims, 191 U. S. 441, 48 L. the jug or bottle in lots less than 5 gal. ed. 254, 24 Sup. Ct. Rep. 151; Rearick v. long." A violation of the statute was made Pennsylvania, 203 U. S. 507, 51 L. Ed. 295. a misdemeanor punishable by fine or im- ( 27_Sup. Ct. Rep. 159.

*Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Commerce, $ 111.

or which, if concerning intoxicating liquors, The proposition relied upon, therefore, related to controversies originating before when considered in the light of the Wilson the enactment of the Wilson law.

act, reduces itself to this: Albeit the state The general power of the states to control of South Dakota had power within its terand regulate the business of dealing in or ritory to prevent the sale of intoxicating soliciting proposals within their borders for liquors, even when shipped into that state the purchase of intoxicating liquors is be- from other states, yet South Dakota was yond question. With the existence of this wanting in authority to prevent or regugeneral power we are not, therefore, con- late the carrying on within its borders of cerned. We are hence called upon only to the business of soliciting proposals for the consider whether the general power of the purchase of liquors, because the proposals. state to control and regulate the liquor were to be consummated outside of the traffic and the business of dealing or solic- state, and the liquors to which they related iting proposals for the dealing in the same were also outside the state. This, howwithin the state was inoperative as to the ever, but comes to this: That the power exparticular dealings here in question, be isted to prevent sales of liquor, even when cause they were interstate commerce, and brought in from without the state, and yet therefore could not be subjected to the sway there was no authority to prevent or reguof the state statute without causing that late the carrying on of the accessory busistatute to be repugnant to the commerce

ness of soliciting orders within the state. clause of the Constitution of the United Aside, however, from the anomalous situaStates,

tion to which the proposition thus conduces, It is well at once to give the text of the we think to maintain it would be repugnant Wilson act, which is as follows (26 Stat. at to the plain spirit of the Wilson act. That L. 313, chap. 728):

act, as we have seen, manifested the con“That all fermented, distilled, or other viction of Congress that control by the intoxicating liquors or liquids transported states over the traffic of dealing in liquor into any state or territory or remaining within their borders was of such importance therein for use, consumption, sale, or stor that it was wise to adopt a special regulaage therein, shall, upon arrival in such tion of interstate commerce on the subject. state or territory, be subject to the opera- When, then, for the carrying out of this tion and effect of the laws of such state or purpose, the regulation expressly provided territory enacted in the exercise of its po- that intoxicating liquors coming into a state lice powers, to the same extent and in the should be as completely under the control same manner as though such liquids or of a state as if the liquor had been manu. liquors had been produced in such state or factured therein, it would be, we think, a territory, and shall not be exempt there- disregard of the purposes of Congress to from by reason of being introduced therein hold that the owner of intoxicating liquors in original packages or otherwise.”

in one state can, by virtue of the commerce It is settled by a line of decisions of this clause, go himself or send his agent into court, noted in the margin,I that the pur- such other state, there, in defiance of the pose of the Wilson act, as a regulation by law of the state, to carry on the business Congress of interstate commerce, was to of soliciting proposals for the purchase of allow the states, as to intoxicating liquors, intoxicating liquors. when the subject of such commerce, to exert Passing from these general considerations, ampler power than could have been exer- let us briefly more particularly notice some cised before the enactment of the statute of the arguments relied upon. In other words, that Congress, sedulous to As we have stated, decisions of this court prevent its exclusive right to regulate com interpreting the Wilson act have held that merce from interfering with the power of that law did not authorize state power to the states over intoxicating liquor, by the attach to liquor shipped from one state into Wilson act adopted a special rule enabling another before its arrival and delivery withthe states to extend their authority as to in the state to which destined. From this such liquor shipped from other states be- it is insisted, as none of the liquor covered fore it became commingled with the mass by the proposals in this case had arrived of other property in the state by a sale in and been delivered within South Dakota, the original package.

the power of the state did not attach to the Re Rahrer (Wilkerson v. Rahrer) 140 U., 196 U. S. 147, 49 L. ed. 424, 25 Sup. Ct. Rep. S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865; 185; Pabst Brewing Co. v. Crenshaw, 198 Rhodes v. Iowa, 170 U. S. 412, 42 L. ed. U. S. 17, 49 L. ed. 925, 25 Sup. Ct. Rep. 1088, 18 Sup. Ct. Rep. 664; Vance v. W. 552; Foppiano v. Speed, 199 U. S. 501, 50 A. Vandercook Co. 170 U. S. 438, 42 L. ed. L. ed. 288, 26 Sup. Ct. Rep. 138; Heyman 1100, 18 Sup. Ct. Rep. 674; American Exp. v. Southern R. Co. 203 U. S. 270, 51 L. Ed. Co. v. Iowa. 196 U. S. 133, 49 L. ed. 417, 25 178, 27 Sup. Ct. Rep. 104. Sup. Ct. Rep. 182; Adams Exp. Co. v. Iowa,

carrying on of the business of soliciting pro- | that case and the matters therein decided posals, for, until the liquor arrived in the were recapitulated in Pabst Brewing Co. v. state, there was nothing on which the state Crenshaw, 198 U. S. 17, 49 L. ed. 925, 25 authority could operate. But this is sim- Sup. Ct. Rep. 552, as follows (p. 25, L. ed. ply to misapprehend and misapply the cases p. 928, Sup. Ct. Rep. p. 553): and to misconceive the nature of the act "In Vance v. W. A. Vandercook, supra, done in the carrying on the business of so- the operation of a liquor law of South Carliciting proposals. The rulings in the pre-olina was considered. By the act in quesvious cases to the effect that, under the tion the state of South Carolina took exWilson act, state authority did not extend clusive charge of the sale of liquor within over liquor shipped from one state into an- the state, appointed its agents to sell the other until arrival and delivery to the con- same, and empowered them to purchase the signee at the point of destination, were but liquor which was to be brought into the a recognition of the fact that Congress did state for sale. The fact was that, by the not intend, in adopting the Wilson act, even act in question, the state of South Carolina, if it lawfully could have done so, to au- instead of forbidding the traffic in liquor, thorize one state to exert its authority in authorized it, and engaged in the liquor another state by preventing the delivery of business for its own account, using it as a liquor embraced by transactions made in source of revenue. The act, in addition, such other state. The proposition here re- affixed prerequisite conditions to the shiplied on is widely different, since it is that, ment into South Carolina from other states despite the Wilson act, the state of South of liquor to a consumer who had purchased Dakota was without power to regulate or it for his own use, and not for sale. Concontrol the business carried on in South sidering the Wilson act and the previous Dakota of soliciting proposals for the pur- decisions applying it,

in so far chase of liquors, because the proposals re- as it took charge in behalf of the state of

nor situated in another state. the sale of liquor within the state, and But the business of soliciting proposals in made such sale a source of revenue, was South Dakota was one which that state had not an interference with interstate coma right to regulate, wholly irrespective of merce. In so far, however, as the state law when or where it was contemplated the pro- imposed burdens on the right to ship liquor posals would be accepted or whence the from another state to a resident of South liquor which they embraced was to be varolina, intended for his own use, and not shipped. Of course, if the owner of the for sale within the state, the law was held liquor in another state had a right to ship to be repugnant to the Constitution, bethe same into South Dakota as an article cause the Wilson act, whilst it delegated of interstate commerce, and, as such, there to the state plenary power to regulate the sell the same in the original packages, ir- sale of liquors in South Carolina shipped respective of the laws of South Dakota, it into the state from other states, did not would follow that the right to carry on the recognize the right of a state to prevent an business of soliciting in South Dakota was individual from ordering liquors from outan incident to the right to ship and sell, side of the state of his residence for his which could not be burdened without di- own consumption, and not for sale.” rectly affecting interstate commerce. But, It having been thus settled that under as by the Wilson act, the power of South the Wilson act a resident of one state had Dakota attached to intoxicating liquors, the right to contract for liquors in another when shipped into that state from another state and receive the liquors in the state of state, after delivery, but before the sale in his residence for his own use, therefore, it the original package, so as to authorize is insisted, the agent or traveling salesman South Dakota to regulate or forbid such of a nonresident dealer in intoxicating lisale, it follows that the regulation by South quors had the right to go into South DaDakota of the business carried on within its kota and there carry on the business of soborders of soliciting proposals to purchase liciting from residents of that state orders intoxicating liquors, even though such li- for liquor, to be consummated by acceptance quors were situated in other states, cannot of the proposals by the nonresident dealer. be held to be repugnant to the commerce The premise is sound, but the error lies in clause of the Constitution, because directly the deduction, since it ignores the broad or indirectly burdening the right to sell distinction between the want of power of a in South Dakota,—a right which, by virtue state to prevent a resident from ordering of the Wilson act, did not exist.

from another state liquor for his own use, 2. Nor is there merit in the arguments and the plenary authority of a state to based on the ruling in Vance v. W. A. Van- forbid the carrying on within its borders of dercook, 170 U. S. 438, 42 L. ed. 1100, 18 the business of soliciting orders for intox. Sup. Ct. Rep. 674. The controversies in Licating liquors situated in another state,

87 8. 0.--29.

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