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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, EstopPalouse 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 had 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 this action [that at bar] the right asserted is a perpetual easement or way by virtue of the act of 1875 through the lands involved in the former suit. Not only was this right not pleaded in the former complaint, but under it the title now asserted could not have been proved." To sustain these conclusions the following authorities are cited: Wiggins Ferry Co. v. Ohio & M. R. Co. 142 U. S. 396, 410, 35 L. ed. 1055, 1060, 12 Sup. Ct. Rep. 188; Gilman v. Rives, 10 Pet. 298, 9 L. ed. 432; Freeman, Judgm. 4th ed. 267; Van Fleet, Former Adjudication, § 306 and following.

In United States v. California & O. Land Co. 192 U. S. 355, 48 L. ed. 476, 24 Sup. Ct. Rep. 266, this principle was applied. In that case a decree rendered upon a bill in equity brought under an act of Congress to have patents for land declared void, as forfeited, and to establish the title of the United States to the land, was held to be a bar to a subsequent bill brought against the same defendants to recover the same land, on the ground that it was excepted from the original grant as an Indian reservation. And, speaking of the two suits, we said, by Mr. Justice Holmes: "The best that can be said, apart from the act just quoted, to distinguish the two suits, is that now the United States puts forward a new ground for its prayer. Formerly it sought to avoid the patents by way of forfeiture. Now it seeks the same conclusion by a different means; that is to say, by evidence that the lands originally were excepted from the grant. But in this, as in the former suit, it seeks to establish its own title to the fee." And further: "But the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time. He cannot even split up his claim (Fetter v. Beale, 1 Salk. 11; Trask v. Hartford & N. H. R. Co. 2 Allen, 331; Freeman, Judgm. 4th ed. §§ 238, 241); and, a fortiori, he cannot divide the grounds of recovery."

The citations are not apposite to the present controversy. It is well established that a judgment on demurrer is as conclusive as one rendered upon proof. Gould v. Evansville & C. R. Co. 91 U. S. 526, 23 L. ed. 416; Bissell v. Spring Valley Twp. 124 U. S. 225, 31 L. ed. 411, 8 Sup. Ct. Rep. 495; Freeman, Judgm. § 267. The question as to such judgment when pleaded in bar of another action will be necessarily its legal identity with such action. The general rule of the extent of the bar is not only what was pleaded or litigated, but what could have been pleaded or litigated. There is a difference between the effect of a judgment as a bar against the prosecution of a second action for the same claim or demand, and its effect as effect as an estoppel in 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 rail276, 24 Sup. Ct. Rep. 154); and a distinc-way company could not assert against a

supra.

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 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. 92, 20 L. ed. 534, and Redfield v. Parks, 132 U. S. 239, 33 L. ed. 327, 10 Sup. Ct. Rep. 83; that is, decided that the statute did not commence to run until the patent issued to Slaght, and that, therefore, this action was not barred. The ruling, we think, was right. The act of Congress of 1875 and the statute of limitations are independent defenses, and, being so, the latter comes within the rule announced. Of course, if the act of Congress of 1875 was a grant of the right of way in præsenti, "conveying a good title when the road was completed," as contended, it needs no aid from the statute of limitations, and would effectual defense if it were not

The Spokane & Palouse Railway Company alleged a title in fee simple, and the truth of the allegation could be determined as well by demurrer as by proof, and the same legal consequences followed from it. Clearwater v. Meredith (Ferguson v. Meredith) 1 Wall. 25, 17 L. ed. 604; Goodrich v. Chicago, 5 Wall. 566, 18 L. ed. 511; Aurora v. West, 7 Wall. 82, 19 L. ed. 42; Black, Judgm. § 707; Freeman, Judgm. 267, and cases herein before cited. The record shows that the demurrer was not upon merely formal or technical defects, but went to the merits. It was directed to the second amended complaint of the plaintiffs. be an effectual They elected to stand on that complaint, barred by the judgment which we have conand declined to plead further. They assert-sidered.

Judgment affirmed.

ed its sufficiency by an appeal to the supreme court of the state and again to this court, and met defeat in both, as we

have seen. Whether the Spokane & Palouse

PANY et al.

V.

ARGARET SLAGHT.

Northern P. R. Co. v. Slaght, ante, p. 442.
This case is governed by the decision in

Railway Company could have pleaded, in NORTHERN PACIFIC RAILWAY COMaddition to the right it alleged under the deed from Powers, the rights that plaintiffs in error contend it acquired under the act of Congress of 1875, or the statute of limitations of the state, we need not determine. See $ 97, 120, 14 L. ed. 942 et seq.; Story, Eq. Pl.; Smith v. Swormstedt, 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 now bound by that election. The interest that the Spokane & Palouse Railway Com

IN

IN

[No. 153.]

cided March 11, 1907.

pany derived from Powers was of the right ERROR to the Supreme Court of the

State of Washington to review a judg ment which affirmed a judgment of the Superior Court in and for the County of Whitman, in that state, in favor of plaintiff in an action of ejectment. Affirmed.

Messrs. Charles W. Bunn and James B. Kerr for plaintiffs in error.

No counsel for defendant in error.

of way, which is now claimed by plaintiff in error. In other words, plaintiff in error, as successor of the Spokane & Palouse Railway Company, again asserts title to the very property that was the subject of the other suit, the source of title, only, being different. If this may be done, how often may it be repeated? If defeated upon the new title, may plaintiff in error assert still another one, either in its predecessor 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 afing that principle declare otherwise.

In the discussion thus far we have assumed, as contended by plaintiff in error, that the statute of limitations could com

Mr. Justice McKenna delivered the opinion of the court:

firmed.

Mr. Justice Brewer took no part in the decision of these cases.

JAY DELAMATER, Plff. in Err.,

V.

STATE OF SOUTH DAKOTA.

prisonment, or both, in the discretion of the court, Delamater, not having paid the 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 menThe annual license charge imposed 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 disposed of such Federal ground. 104 N. W. 537.

[No. 149.]

All the assignments of error involve the Argued January 10, 11, 1907. Decided proposition that the state statute, as con

March 11, 1907.

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A firm established in St. Paul, Minnesota, which was engaged in dealing in intoxicating liquors, employed Delamater, the plaintiff in error, as a traveling salesman. As such salesman Delamater, in the state of South Dakota, carried on the business of soliciting orders from residents of that state for the purchase, from the firm in St. Paul, of intoxicating liquors in quantities of less than 5 gallons. The course of dealing was this: The orders were procured in the form of proposals to buy, and when accepted by the firm the liquor was shipped from St. Paul to the persons in South Dakota who made the proposals, at their risk and cost, on sixty days' credit. At the time Delamater engaged in South Dakota in the business just stated the law of that state imposed an annual license charge upon "the business of selling or offering for sale" intoxicating liquors within the state, "by any traveling salesman who solicits orders by the jug or bottle in lots less than 5 gallons." A violation of the statute was made a misdemeanor punishable by fine or im

stitution.

strued and applied by the court below, is repugnant to the commerce clause of the ConIt is manifest, as the subject dealt with is intoxicating liquors, that the decision of the cause does not require us to determine whether the restraints which the statute imposes would be a direct burden on interstate commerce if generally applied to subjects of such commerce, but only to decide whether such restraints are a direct burden on interstate commerce in in

toxicating liquors as regulated by Congress in the act commonly known as the Wilson act. 26 Stat. at L. 313, chap. 728, U. S. Comp. Stat. 1901, p. 3177. For this reason we at once put out of view decisions of this court, which are referred to in argument and which are noted in the margin,† because they concerned only the power of a state to deal with articles of interstate commerce other than intoxicating liquors,

†Robbins v. Taxing District, 120 U. S. 489, 30 L. ed. 694, 1 Inters. Com. Rep. 45, 7

Sup. Ct. Rep. 592; Corson v. Maryland, 120 U. S. 502, 30 L. ed. C99, 1 Inters. Com. Rep. 50, 7 Sup. Ct. Rep. 655; Asher v. Texas, 128 U. S. 129, 32 L. ed. 368, 2 Inters. Com. Rep. 241, 9 Sup. Ct. Rep. 1; Stoutenburgh v. Hennick, 129 U. S. 141, 32 L. ed. 135' U. S. 100, 34 L. ed. 128, 3 Inters. Com. 637, 9 Sup. Ct. Rep. 256; Leisy v. Hardin, Rep. 36, 10 Sup. Ct. Rep. 681; Lyng v. Michigan, 135 U. S. 161, 34 L. ed. 150, 3 Inters. Com. Rep. 143, 10 Sup. Ct. Rep. 725; Crutcher v. Kentucky, 141 U. S. 47, 35 L. ed. 649, 11 Sup. Ct. Rep. 851; Brennan v. Titusville, 153 U. S. 289, 38 L. ed. 719, 4 Inters. Com. Rep. 658, 14 Sup. Ct. Rep. 829; 47 L. ed. 336, 23 Sup. Ct. Rep. 229; Norfolk Caldwell v. North Carolina, 187 U. S. 622, & W. R. Co. v. Sims, 191 U. S. 441, 48 L. ed. 254, 24 Sup. Ct. Rep. 151; Rearick v. Pennsylvania, 203 U. S. 507, 51 L. Ed. 295. 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 the enactment of the Wilson law.

when considered in the light of the Wilson act, reduces itself to this: Albeit the state of South Dakota had power within its territory to prevent the sale of intoxicating liquors, even when shipped into that state from other states, yet South Dakota was wanting in authority to prevent or regulate the carrying on within its borders of the business of soliciting proposals for the purchase of liquors, because the proposals. were to be consummated outside of the state, and the liquors to which they related were also outside the state. This, however, but comes to this: That the power ex

The general power of the states to control and regulate the business of dealing in or soliciting proposals within their borders for the purchase of intoxicating liquors is beyond question. With the existence of this general power we are not, therefore, concerned. We are hence called upon only to consider whether the general power of the state to control and regulate the liquor traffic and the business of dealing or soliciting proposals for the dealing in the same within the state was inoperative as to the particular dealings here in question, be-isted to prevent sales of liquor, even when cause they were interstate commerce, and therefore could not be subjected to the sway of the state statute without causing that statute to be repugnant to the commerce clause of the Constitution of the United States.

It is well at once to give the text of the Wilson act, which is as follows (26 Stat. at L. 313, chap. 728):

"That all fermented, distilled, or other intoxicating liquors or liquids transported into any state or territory or remaining therein for use, consumption, sale, or storage therein, shall, upon arrival in such state or territory, be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise."

It is settled by a line of decisions of this court, noted in the margin, that the purpose of the Wilson act, as a regulation by Congress of interstate commerce, was to allow the states, as to intoxicating liquors, when the subject of such commerce, to exert ampler power than could have been exercised before the enactment of the statute. In other words, that Congress, sedulous to prevent its exclusive right to regulate commerce from interfering with the power of the states over intoxicating liquor, by the Wilson act adopted a special rule enabling the states to extend their authority as to such liquor shipped from other states before it became commingled with the mass of other property in the state by a sale in the original package.

Re Rahrer (Wilkerson v. Rahrer) 140 U., S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865; Rhodes v. Iowa, 170 U. S. 412, 42 L. ed. 1088, 18 Sup. Ct. Rep. 664; Vance v. W. A. Vandercook Co. 170 U. S. 438, 42 L. ed. 1100, 18 Sup. Ct. Rep. 674; American Exp. Co. v. Iowa. 196 U. S. 133, 49 L. ed. 417, 25 Sup. Ct. Rep. 182; Adams Exp. Co. v. Iowa,

brought in from without the state, and yet there was no authority to prevent or regulate the carrying on of the accessory business of soliciting orders within the state. Aside, however, from the anomalous situation to which the proposition thus conduces, we think to maintain it would be repugnant to the plain spirit of the Wilson act. That act, as we have seen, manifested the conviction of Congress that control by the states over the traffic of dealing in liquor within their borders was of such importance that it was wise to adopt a special regulation of interstate commerce on the subject. When, then, for the carrying out of this purpose, the regulation expressly provided that intoxicating liquors coming into a state should be as completely under the control of a state as if the liquor had been manufactured therein, it would be, we think, a disregard of the purposes of Congress to hold that the owner of intoxicating liquors in one state can, by virtue of the commerce clause, go himself or send his agent into such other state, there, in defiance of the law of the state, to carry on the business of soliciting proposals for the purchase of intoxicating liquors.

Passing from these general considerations, let us briefly more particularly notice some of the arguments relied upon.

As we have stated, decisions of this court interpreting the Wilson act have held that that law did not authorize state power to attach to liquor shipped from one state into another before its arrival and delivery within the state to which destined. From this it is insisted, as none of the liquor covered by the proposals in this case had arrived and been delivered within South Dakota, the power of the state did not attach to the 196 U. S. 147, 49 L. ed. 424, 25 Sup. Ct. Rep. 185; Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, 49 L. ed. 925, 25 Sup. Ct. Rep. 552; Foppiano v. Speed, 199 U. S. 501, 50 L. ed. 288, 26 Sup. Ct. Rep. 138; Heyman v. Southern R. Co. 203 U. S. 270, 51 L. Ed. 178, 27 Sup. Ct. Rep. 104.

were recapitulated in Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, 49 L. ed. 925, 25 Sup. Ct. Rep. 552, as follows (p. 25, L. ed. p. 928, Sup. Ct. Rep. p. 553):

"In Vance v. W. A. Vandercook, supra, the operation of a liquor law of South Car

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as it took charge in behalf of the state of the sale of liquor within the state, and made such sale a source of revenue, was not an interference with interstate commerce. In so far, however, as the state law

carrying on of the business of soliciting pro- | that case and the matters therein decided posals, for, until the liquor arrived in the state, there was nothing on which the state authority could operate. But this is simply to misapprehend and misapply the cases and to misconceive the nature of the act done in the carrying on the business of soliciting 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 related to liquor situated in another state. But the business of soliciting proposals in South Dakota was one which that state had a right to regulate, wholly irrespective of when or where it was contemplated the pro-imposed burdens on the right to ship liquor posals would be accepted or whence the liquor which they embraced was to be shipped. Of course, if the owner of the liquor in another state had a right to ship the same into South Dakota as an article of interstate commerce, and, as such, there sell the same in the original packages, irrespective of the laws of South Dakota, it would follow that the right to carry on the business of soliciting in South Dakota was an incident to the right to ship and sell, which could not be burdened without directly affecting interstate commerce. But, as by the Wilson act, the power of South Dakota attached to intoxicating liquors, when shipped into that state from another state, after delivery, but before the sale in the original package, so as to authorize South Dakota to regulate or forbid such sale, it follows that the regulation by South Dakota of the business carried on within its borders of soliciting proposals to purchase intoxicating liquors, even though such liquors were situated in other states, cannot be held to be repugnant to the commerce clause of the Constitution, because directly or indirectly burdening the right to sell in South Dakota,-a right which, by virtue of the Wilson act, did not exist.

from another state to a resident of South Carolina, intended for his own use, and not for sale within the state, the law was held to be repugnant to the Constitution, because the Wilson act, whilst it delegated to the state plenary power to regulate the sale of liquors in South Carolina shipped into the state from other states, did not recognize the right of a state to prevent an individual from ordering liquors from outside of the state of his residence for his own consumption, and not for sale."

It having been thus settled that under the Wilson act a resident of one state had the right to contract for liquors in another state and receive the liquors in the state of his residence for his own use, therefore, it is insisted, the agent or traveling salesman of a nonresident dealer in intoxicating liquors had the right to go into South Dakota and there carry on the business of soliciting from residents of that state orders for liquor, to be consummated by acceptance of the proposals by the nonresident dealer. The premise is sound, but the error lies in the deduction, since it ignores the broad distinction between the want of power of a state to prevent a resident from ordering 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 intoxSup. Ct. Rep. 674. The controversies in icating liquors situated in another state, 27 8. C.--29.

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