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their work was the work of seamen, and the conviction with respect to them was, I agree, erroneous. Those who are employed upon the dredges and scows were not, in respect of the work they were actually doing, in any proper sense, seamen. The master and engineer of the dredge were not licensed, and the men employed upon it seemed not to have entered into any contract of shipment. They were employed usually from those who had served in the merchant marine. They had doubtless acquired the skill and aptitude which especially fitted them for work upon the dredges, which required some handling of lines and some other minor things in which sailors become expert. But, because a man has acquired in one occupation skill which fits him for another, it does not follow that, when he passes from one occupation to the other, the work which he does in the new employment entitles him rightfully to be called by the old name. The sailor who is appointed the keeper of a lighthouse may have received his appointment because he was once a sailor, but, nevertheless, when he enters into the new service, he is a lighthouse keeper, and not a sailor. The occupation of dredging is not the only one for which life on the sea educates a man. There is a constant demand, for instance, for those who have an honorable discharge from the Navy for employment in civil life. The qualities of obedience, of daring, of fidelity, of the capacity for quick adaptation of insufficient means to the end which may be desired, all the result of training upon the sea,-are qualities which are needed in many stations of civil life; but, when men have reached those stations by reason of qualities developed in them while seamen, they are no longer sailThe work of the dredge men and scow men may be described in a sentence. They were digging a channel and emptying the material excavated in the sea. All those who were engaged in the work may fairly be described as either laborers or mechanics. They had nothing whatever to do with navigation. Neither the dredges nor the scows had steering gear, sails, or other methods of self-propulsion. They were towed to the place where the work was to be done, and

ors.

there left to do it.

It does not seem to be important that, for some purposes, the scows and dredges were vessels, or those employed upon them, for some purposes, are deemed seamen. The question here is, What were the men when they were engaged in the work of excavation? Were the men at that time employed as seamen, doing the work of seamen, or as laborers and mechanics, doing the work of laborers and mechanics? I think they then were laborers or mechanics, and employed

as such, and that their occupation is determined not by what they have done in the past, or by what their employers chose to call them, but by what they were doing when the government invoked the law for their benefit. If they were then doing the work of laborers and mechanics, whatever they may have done in the past, which constitutes a motive for their employment, or by whatever name they were employed, they were, or rather their labor was, within the restrictions as to hours prescribed by the law. Nor was their work in dredging incident to their employment on the dredges, but quite the reverse. They never would have been employed at all except for dredging. They never would have set foot on the dredge save to use it as a platform on which to do the work of laborers and mechanics. It should not be forgotten that the object of this statute, in which is embodied an expression of a great public policy, is to regulate labor of the kind named, and the men concerned are in or out of its prohibitions solely by reason of the kind of labor they perform. How can it be material here whether the dredge is or is not a vessel within the admiralty jurisdiction, or that, in the construction of two specifically named statutes, all those upon it are deemed to be seamen? There is no artificial statutory construction prescribed for this act, and what the men on it are is left, under this act, to be determined according to the truth and fact, and the test to be applied is the nature of the labor they actually perform. They were employed to do the work of laborers and mechanics; in the main they actually did that work; and whatever they did which was of the nature of seamen's work was a mere incident to the fact that they labored upon a floating platform instead of upon the dry land.

It is conceded in the opinion of the court that the statute admits of an interpretation which brings these cases within it. May not more be said? Are not these cases fairly within the plain words of the act? If this be so, then the rule of strict interpretation, applicable to penal laws, a rule which has lost all of its ancient rigor, if indeed it is now more than a lifeless form (United States v. Lacher, 134 U. S. 624, 628, 33 L. ed. 1080, 1083, 10 Sup. Ct. Rep. 625), cannot be used to take them out. When the intention of the legislature is reasonably clear, the courts have no duty except to carry it out. The rule for the construction of penal statutes is satisfied if the words are not enlarged beyond their natural meaning, and it does not require that they shall be restricted to less than that.

The impossibility or difficulty of applying

this law to the operations of dredging, which, upon the evidence, I think, amounts to no more than that it would result in an inconvenience, which the defendants may readily avoid by refusing to contract with the government, is a consideration fit to be addressed to Congress rather than to this court.

I am authorized to say that Mr. Justice Harlan and Mr. Justice Day concur in this dissent.

the Adams Express Company, the latter being a partnership engaged in and carrying on the business of a common carrier of packages, goods, wares, and merchandise, by the method known as express did, in Laurel county, Kentucky, on the 17th day of February, 1904, unlawfully and wilfully carry for and deliver to George Meece a parcel, package, shipment, and quantity of intoxicating, spirituous, vinous, and malt liquors . . to be and which was paid for on delivery at East Bernstadt in said Laurel county, same being at the time a shipment commonly known and called C. O.

ADAMS EXPRESS COMPANY, Plff. in Err., D. shipments, . . . said shipment and

v.

COMMONWEALTH OF KENTUCKY.

Commerce-in intoxicating liquors-state regulation.

1. The agreement of the local agent of an express company to hold for a few days a C. O. D. interstate shipment of intoxicating liquors, to suit the convenience of the consignee in paying for such liquor and taking it away, does not destroy the character of the transaction as interstate commerce, so as to render the express company amenable to prosecution for violating a state local option law.

Evidence-materiality under averments of indictment.

2. Evidence that the express company knew that a C. O. D. interstate shipment of intoxicating liquors was not ordered by the consignee is immaterial on a criminal prosecution of the express company for violating a state local option law, where the indictment avers that the express company was engaged in the business of a common carrier of packages, and that the shipment and delivery were made and done in the usual course of its business.

[No. 331.]

delivery being made and done at the time by said Joe Newland and said Adams Express Company in the usual course of business of said Adams Express Company."

Subsequently the action was dismissed as to Newland, and, on a plea of not guilty, the case was tried before a jury and resulted in a verdict finding the company guilty and fixing the fine at $60. The instructions of the court were as follows:

"Gentlemen of the Jury: 1. If you shall believe from the evidence beyond a reasonable doubt, that the defendant, Adams Express Company, is a copartnership, formed of persons whose names and number were unknown to the grand jury that found this indictment, and who lived out of the state of Kentucky, but are doing business in the state of Kentucky and in Laurel county, Kentucky, and under the firm name and style of 'Adams Express Company,' and that the said Adams Express Company, in this county and within twelve months next before the finding of the indictment herein, knowingly delivered to the witness, George Meece, spirituous, vinous, or malt liquors in quantities of less than 5 gallons at the time mentioned by the witness, and re

Argued April 17, 18, 1907. Decided May 13, ceived the pay therefor, and that said com

1907.

pany received any pay whatever for its service in that behalf, then you should find

IN ERROR to the Court of Appeals of the the defendant guilty and fix its punishment

State of Kentucky to review a judgment which affirmed a conviction in the Circuit Court of Laurel County, in that state, under an indictment charging an express company with violating the state local option law by carrying and delivering a C. O. D. interstate shipment of intoxicating liquors. Reversed.

at any fine not less than $60.00 nor more than $100.00, in your discretion, according to proof.

"2. The court says to the jury that if they shall believe from the evidence, beyond a reasonable doubt, that the agent or agents of the defendant's company that accepted, received, transported, or delivered the pack

See same case below, 27 Ky. L. Rep. 1096, age mentioned in evidence by the witness 87 S. W. 1111.

Statement by Mr. Justice Brewer:

On February 17, 1904, a grand jury returned into the circuit court of Laurel county, Kentucky, an indictment against Joe Newland and the Adams Express Company, charging that "the said Joe Newland and

Meece, knew, or might, by the exercise of such care as persons of ordinary prudence are accustomed to use in the ordinary transactions of life, have known the contents of the package delivered to the witness, then the defendant company is chargeable with such knowledge, and should be held to know the contents of such package."

signee."

Judgment was entered on the verdict, | ment, and until its arrival at the point of which was affirmed by the court of appeals destination and delivery there to the conof the state, 27 Ky. L. Rep. 1096, 87 S. W. 1111, and from that court the case was brought here on writ of error. The act under which the prosecution was had is subsec. 4 of § 2557b, Kentucky Statutes, 1903, commonly called the "C. O. D." law, which is part of the general local option law as amended in 1902, and which reads:

"All the shipments of spirituous, vinous, or malt liquors, to be paid for on delivery, commonly called 'C. O. D. shipments' into any county, city, town, district, or precinct where said act is in force, shall be unlawful and shall be deemed sales of such liquors at the place where the money is paid or the goods delivered; the carrier and his agents selling or delivering such goods shall be liable jointly with the vendor thereof."

Messrs. Lawrence Maxwell, Jr., E. F. Trabue, and Joseph S. Graydon for plaintiff in error.

The court of appeals sustained the judg ment upon these facts: Meece testified that he had not ordered the whisky; that he was not expecting any from Cincinnati, but, on going with his brother to the company's office at East Bernstadt, was told that it was there awaiting him; that he requested the agent to hold it until the succeeding Saturday, when he would come, pay for and take it away; and that on that day he did so, paying $3.85 for the whisky, the express charges having been prepaid at Cincinnati. The court held that, by reason of the retention of the package by the agent, the company ceased to hold it as carrier, and had become a mere bailee or warehouseman; that, therefore, the statute, as applied to the transaction, was not a regulation of commerce; and, further, that, as Meece had not ordered the whisky, there was no contract for the sale of it in Cincinnati, but only by the company at East Bernstadt, in

Messrs. N. B. Hays and Charles H. Morris Kentucky; that while there was no testifor defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

The testimony showed that the package, containing a gallon of whisky, was shipped from Cincinnati, Ohio, to George Meece, at East Bernstadt, Kentucky. The transaction was therefore one of interstate commerce, and within the exclusive jurisdiction of Congress. The Kentucky statute is obviously an attempt to regulate such interstate commerce. This is hardly questioned by the court of appeals, and is beyond dispute under the decisions of this court.

In Vance v. W. A. Vandercook Co. 170 U. S. 438, 444, 42 L. ed. 1100, 1103, 18 Sup. Ct. Rep. 674, 676, Mr. Justice White, delivering the opinion of the court, said:

"Equally well established is the proposition that the right to send liquors from one state into another, and the act of sending the same, is interstate commerce, the regulation whereof has been committed by the Constitution of the United States to Congress, and, hence, that a state law which denies such a right, or substantially interferes with or hampers the same, is in conflict with the Constitution of the United States."

In Rhodes v. Iowa, 170 U. S. 412, 426, 42 L. ed. 1088, 18 Sup. Ct. Rep. 664, 669, it was held that the Wilson act [26 Stat. at L. 313, chap. 728, U. S. Comp. Stat. 1901, p. 3177] "was not intended to and did not cause the power of the state to attach to an interstate commerce shipment, whilst the merchandise was in transit under such ship

mony showing that the company's agent at Cincinnati knew that the whisky had not been ordered by Meece, yet its agent in Kentucky was so informed, and, therefore, the company was possessed, through its agent, of knowledge that there was no interstate transaction, and, with that knowledge, sold the whisky to Meece. But that the agent consented to hold the whisky until Saturday did not destroy the character of the transaction as one of interstate commerce is settled by the recent case of Heyman v. Southern R. Co. 203 U. S. 270, 51 L. ed. 178, 27 Sup. Ct. Rep. 104. In that case whisky had been forwarded to a party in Charleston, South Carolina, and after its arrival at Charleston was placed in the warehouse of the railroad company by its agent, and there seized by constables, asserting their right so to do under the dispensary law of South Carolina. The point was made and sustained by the supreme court of the state of Georgia, in which state an action had been brought against the company for the value of the goods, that when the goods were placed in the warehouse the carrier was thenceforward liable only as a warehouseman. In passing upon this contention we said (p. 276, 51 L. ed. p. 178, 27 Sup. Ct. Rep. p. 107):

"As the general principle is that goods moving in interstate commerce cease to be such commerce only after delivery and sale in the original package, and as the settled rule is that the Wilson law was not an abdication of the power of Congress to regulate interstate commerce, since that law

The judgment of the Court of Appeals of Kentucky is reversed and the case remanded for further proceedings not inconsistent with this opinion.

simply affects an incident of such commerce | en the power vested by the Constitution in by allowing the state power to attach after Congress over interstate commerce. delivery and before sale, we are not concerned with whether, under the law of any particular state, the liability of a railroad company as carrier ceases and becomes that of a warehouseman on the goods reaching their ultimate destination, before notice and before the expiration of a reasonable time for the consignee to receive the goods from the carrier. For, whatever may be the di

Mr. Justice Harlan dissents.

v.

COMMONWEALTH OF KENTUCKY.

vergent legal rules in the several states con- ADAMS EXPRESS COMPANY, Plff. in Err., cerning the precise time when the liability of a carrier as such in respect to the carriage of goods ends, they cannot affect the general principle as to when an interstate shipment ceases to be under the protection of the commerce clause of the Constitution, p. 606. and thereby comes under the control of the state authority."

This case is governed by the decision in Adams Express Company v. Kentucky, ante,

[No. 332.]

13, 1907.

Decided May

With reference to the testimony as to the Argued April 17, 18, 1907. knowledge by the company of the fact that the whisky had not been ordered by the consignee, it is sufficient to say that the averment in the indictment is that the express company was engaged in the business of a common carrier of packages, etc., and that the shipment and delivery were made and done in the usual course of its business. This excludes necessarily the assumption that the transaction was one of sale by the express company at East Bernstadt, and of course the company was under no obligation to offer testimony in support of that which the state admitted to be the fact.

N ERROR to the Court of Appeals of

We do not mean to intimate that an express company may not also be engaged in selling liquor in a state, contrary to its laws, or that the fact that the consignee did not order a shipment might not be evidence for a jury to consider upon the question whether the company was not, in addition to its express business, also selling liquor contrary to the statutes. It is enough to hold, as we do, that under the averments of this indictment such testimony is immaterial. It is, of course, a question of fact whether a carrier is confining itself strictly to its business as a carrier, or participating in illegal sales. The consignor alone may be trying to evade the statute. He may forward the liquors in the expectation that the consignee will, when informed of their arrival, take and pay for them. So the fact that there is no previous order by the consignee may not be conclusive of the carrier's wrongdoing, but still it is entitled to consideration in determining that question.

Much as we may sympathize with the efforts to put a stop to the sales of intoxicating liquors in defiance of the policy of a state, we are not at liberty to recognize any rule which will nullify or tend to weak

the State of Kentucky to review a judg ment which affirmed a conviction in the Circuit Court of Knox County, in that state, under an indictment charging an express company with violating the state local option law by carrying and delivering a C. O. D. interstate shipment of intoxicating liquors. Reversed.

See same case below, 29 Ky. L. Rep. 224, 5 L.R.A. (N.S.) 630, 92 S. W. 932.

Messrs. Lawrence Maxwell, Jr., E. F. Trabue, and Joseph S. Graydon for plaintiff in error.

Messrs. N. B. Hays and Charles H. Morris for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

This case differs from the preceding in the fact that it was tried by the court without a jury. In all other respects it is substantially the same. There was the same averment in the indictment; and, more than that, there was an express stipulation made between counsel, pending the trial, in these words:

"It is further agreed at this point that the whisky about which the witness testified was delivered by the Adams Express Company and received by it in its office in Cincinnati in the usual course of business as a common carrier, and carried by it to Barbourville, Kentucky, by the method commonly known as C. O. D."

There is nothing, therefore, to distinguish this case in principle from the preceding, and the same judgment will be entered in this as in that.

Mr. Justice Harlan dissents.

AMERICAN EXPRESS COMPANY OF | ard Graham of Hodgensville, Kentucky, for NEW York, Plff. in Err.,

V.

COMMONWEALTH OF KENTUCKY.

This case is governed by the decision in Adams Express Company v. Kentucky, ante,

606.

[No. 583.]

an order of whisky to be sent C. O. D., for the delivery of which the warrant herein was issued against the appellant company; that upon this order the whisky in question was shipped to said Graham at Hodgensville, Kentucky, and delivered to him and the charges therefor paid to the appellant company, who returned the same to the said house or firm in Cincinnati, Ohio. There is no proof to show that the express com

Argued April 17, 18, 1907. Decided May pany had any knowledge or information as

13, 1907.

IN of

N ERROR to the Court of Appeals of the State of Kentucky to review a judgment which affirmed a judgment of the Circuit Court of Larue County, in that state, convicting an express company of violating the state local option law by carrying and delivering a C. O. D. interstate shipment of intoxicating. liquors. Reversed.

to the contents of said package so delivered, and there is nothing to show any notice to it whatever of the contents of said package.

"We, however, desire the court to pass upon the question, in order that the many complications growing out of transactions similar to this may be simplified, and the multitude of litigations growing out of the same lessened, whether or not a com

See same case below, 30 Ky. L. Rep. 207, pany similar to the appellant can legally ac97 S. W. 807.

Messrs. Edmund F. Trabue, Lawrence Maxwell, Jr., John C. Doolan, Attilla Cox, Jr., and Joseph S. Graydon for plaintiff in

error.

cept the price for whisky shipped into a local option district contrary to law, thus constitute itself a collecting agency for one who is, under the shield of interstate commerce, protected and permitted to ship

Messrs. N. B. Hays and Charles H. Mor- whisky into such districts. We are of ris for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

This case, like the two preceding, was a prosecution of the express company for a violation of the Kentucky statute in respect to "C. O. D." shipments. It was tried in the circuit court before a jury, which returned a verdict of guilty, and fixed the penalty at $100 fine, which verdict was sustained and judgment entered thereon by the circuit court. The company appealed to the court of appeals, which affirmed the judgment (30 Ky. L. Rep. 207, 97 S. W. 807), and thereupon the case was brought here on writ of error.

The consignee testified that he did not give an order for the shipment, while there was testimony on behalf of the consignor

that such an order was filed with it in the

name of the consignee, and the shipment made upon that order. The brief of the attorney general in the court of appeals, after referring to the testimony of a witness on behalf of the company, said:

"It will appear from his evidence that he resides in Cincinnati, Ohio, and is manager for a wholesale liquor firm located in said city; that on March 21st, 1905, he received an order filed as an Exhibit 'X' from Rich27 S. S. 39.

opinion that an express company has no inherent right under the laws of this state or under the protection of interstate commerce to assume a duty not required of it, as a common carrier, and to do that which is in violation of the laws of this state. Because we believe that this record in its present shape does not show that the appeal from the police court to the circuit court of Larue county was properly and legally taken, and for the further reason violation of law, to accept the price in a that the express company has no right, in local option district of whisky shipped C. O. D., we ask that the judgment be af

firmed."

In view of the concession and contention

of the attorney general we are of the opinion that there is nothing to substantially The same judgment, therefore, will be distinguish this case from the preceding. rendered in this case as in those.

Mr. Justice Harlan, dissenting:

I do not think that these are cases of legitimate interstate commerce. They show only devices or tricks by the express company to evade or defeat the laws of Kentucky relating to the sale of spirituous, vinous, or malt liquors. I dissent from the opinion and judgment in each case.

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