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their work was the work of seamen, and the as such, and that their occupation is deconviction with respect to them was, I agree, termined not by what they have done in erroneous. Those who are employed upon the past, or by what their employers chose the dredges and scows were not, in respect to call them, but by what they were doing of the work they were actually doing, in any when the government invoked the law for proper sense, seamen. The master and en- their benefit. If they were then doing the gineer of the dredge were not licensed, and work of laborers and mechanics, whatever the men employed upon it seemed not to have they may have done in the past, which conentered into any contract of shipment. They stitutes a motive for their employment, or were employed usually from those who had by whatever name they were employed, they served in the merchant marine. They had were, or rather their labor was, within the doubtless acquired the skill and aptitude restrictions as to hours prescribed by the law. which especially fitted them for work upon Nor was their work in dredging incident the dredges, which required some handling to their employment on the dredges, but of lines and some other minor things in quite the reverse. They never would have which sailors become expert. But, because been employed at all except for dredging. a man has acquired in one occupation skill They never would have set foot on the which fits him for another, it does not fol- dredge save to use it as a platform on which low that, when he passes from one occupa- to do the work of laborers and mechanics. tion to the other, the work which he does It should not be forgotten that the object in the new employment entitles him right of this statute, in which is embodied an fully to be called by the old name. The expression of a great public policy, is to regusailor who is appointed the keeper of a late labor of the kind named, and the men lighthouse may have received his appoint concerned are in or out of its prohibitions ment because he was once a sailor, but, solely by reason of the kind of labor nevertheless, when he enters into the new they perform. How can it be material service, he is a lighthouse keeper, and not here whether the dredge is or is not a a sailor. The occupation of dredging is not vessel within the admiralty jurisdiction, or the only one for which life on the sea that, in the construction of two specifically educates

There is a constant de- named statutes, all those upon it are deemed mand, for instance, for those who have an to be seamen? There is no artificial stathonorable discharge from the Navy for em- utory construction prescribed for this act, ployment in civil life. The qualities of and what the men on it are is left, under obedience, of daring, of fidelity, of the capac- this act, to be determined according to the ity for quick adaptation of insufficient means truth and fact, and the test to be applied to the end which may be desired, -all the is the nature of the labor they actually result of training upon the sea, -are qual- perform. They were employed to do the ities which are needed in many stations of work of laborers and mechanics; in the civil life; but, when men have reached those main they actually did that work; and stations by reason of qualities developed in whatever they did which was of the nature them while seamen, they are no longer sail of seamen's work was a mere incident to ors. The work of the dredge men and the fact that they labored upon a floating scow men may be described in a sentence. platform instead of upon the dry land. They were digging a channel and emptying It is conceded in the opinion of the court the material excavated in the sea. All those that the statute admits of an interpretation who were engaged in the work may fairly which brings these cases within it. May be described as either laborers or mechanics. not more be said ? Are not these cases They had nothing whatever to do with navi- fairly within the plain words of the act ? gation. Neither the dredges nor the scows If this be so, then the rule of strict interhad steering gear, sails, or other methods pretation, applicable to penal laws, a rule of self-propulsion. They were towed to the which has lost all of its ancient rigor, if place where the work was to be done, and indeed it is now more than a lifeless form there left to do it.

(United States v. Lacher, 134 U. S. 624, It does not seem to be important that, 628, 33 L. ed. 1080, 1083, 10 Sup. Ct. Rep. for some purposes, the scows and dredges 625), cannot be used to take them out. were vessels, or those employed upon them, When the intention of the legislature is for some purposes, are deemed seamen. The reasonably clear, the courts have no duty question here is, What were the men when except to carry it out. The rule for the they were engaged in the work of excava- construction of penal statutes is satisfied if tion? Were the men at that time employed the words are not enlarged beyond their as seamen, doing the work of seamen, or as natural meaning, and it does not require laborers and mechanics, doing the work of that they shall be restricted to less than laborers and mechanics ? I think they then that. were laborers or mechanics, and employed The impossibility or difficulty of applying

this law to the operations of dredging, which, the Adams Express Company, the latter beupon the evidence, I think, amounts to no ing a partnership engaged in and carrying more than that it would result in an in- on the business of a common carrier of convenience, which the defendants may packages, goods, wares, and merchandise, readily avoid by refusing to contract with by the method known as express the government, is a consideration fit to did, in Laurel county, Kentucky, on the 17th be addressed to Congress rather than to day of February, 1904, unlawfully and wilthis court.

fully carry for and deliver to George Meece

a parcel, package, shipment, and quantity I am authorized to say that Mr. Justice of intoxicating, spirituous, vinous, and malt Harlan and Mr. Justice Day concur in this liquors . . to be and which was paid dissent.

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.

delivery being made and done at the time COMMONWEALTH OF KENTUCKY. by said Joe Newland and said Adams Ex

press Company in the usual course of busiCommerce-in intoxicating liquors—stateness of said Adams Express Company." regulation.

Subsequently the action was dismissed as 1. The agreement of the local agent of to Newland, and, on a plea of not guilty, an express company to hold for a few days the case was tried before a jury and resulta C. O. D. interstate shipment of intoxicating liquors, to suit the convenience of the con- ed in a verdict finding the company guilty signee in paying for such liquor and taking and fixing the fine at $60. The instructions it away, does not destroy the character of of the court were as follows: the transaction as interstate commerce, so as “Gentlemen of the Jury: 1. If you shall to render the express company amenable to believe from the evidence beyond a reasonprosecution for violating a state local option able doubt, that the defendant, Adams Exlaw.

press Company, is a copartnership, formed Evidence-materiality under averments of of persons whose names and number were indictment.

unknown to the grand jury that found this 2. Evidence that the express company indictment, and who lived out of the state knew that a C. 0. D. interstate shipment of intoxicating liquors was not ordered by the of Kentucky, but are doing business in the consignee is immaterial on a criminal prose- state of Kentucky and in Laurel county, cution of the express company for violating Kentucky, and under the firm name and a state local option law, where the indict style of 'Adams Express Company,' and that ment avers that the express company was the said Adams Express Company, in this engaged in the business of a common car- county and within twelve months next berier of packages, and that the shipment fore the finding of the indictment herein, and delivery were made and done in the knowingly delivered to the witness, George usual course of its business.

Meece, spirituous, vinous, or malt liquors [No. 331.]

in quantities of less than 5 gallons at the

time mentioned by the witness, and reArgued April 17, 18, 1907. Decided May 13, ceived the pay therefor, and that said com1907.

pany received any pay whatever for its

service in that behalf, then you should find N ERROR to the Court of Appeals of the the defendant guilty and fix its punishment

State of Kentucky to review a judgment at any fine not less than $60.00 nor more which affirmed a conviction in the Circuit than $100.00, in your discretion, according Court of Laurel County, in that state, under to proof. an indictment charging an express company “2. The court says to the jury that if with violating the state local option law they shall believe from the evidence, beyond by carrying and delivering a C. O. D. inter- a reasonable doubt, that the agent or agents state shipment of intoxicating liquors. Re- of the defendant's company that accepted, versed.

received, transported, or delivered the packSee same case below, 27 Ky. L. Rep. 1096, age mentioned in evidence by the witness 87 S. W. 1111.

Meece, knew, or might, by the exercise of

such care as persons of ordinary prudence Statement by Mr. Justice Brewer:

are accustomed to use in the ordinary transOn February 17, 1904, a grand jury re- actions of life, have known the contents of turned into the circuit court of Laurel coun- the package delivered to the witness, then ty, Kentucky, an indictment against Joe the defendant company is chargeable with Newland and the Adams Express Company, such knowledge, and should be held to know charging that "the said Joe Newland and the contents of such package."

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. signee.1111, and from that court the case

The court of appeals sustained the judgbrought here on writ of error. The act ment upon these facts: Meece testified that under which the prosecution was had is he had not ordered the whisky; that he subsec. 4 of § 2557b, Kentucky Statutes, was not expecting any from Cincinnati, but, 1903, commonly called the "C. 0. D.” law, on going with his brother to the company's which is part of the general local option office at East Bernstadt, was told that it law as amended in 1902, and which reads: was there awaiting him; that he requested

"All the shipments of spirituous, vinous, the agent to hold it until the succeeding or malt liquors, to be paid for on delivery, Saturday, when he would come, pay for commonly called 'C. 0. D. shipments' into and take it away; and that on that day any county, city, town, district, or precinct he did so, paying $3.85 for the whisky, the where said act is in force, shall be un-express charges having been prepaid at Cinlawful and shall be deemed sales of such cinnati. The court held that, by reason liquors at the place where the money is of the retention of the package by the agent, paid or the goods delivered; the carrier and the company ceased to hold it as carrier, and his agents selling or delivering such goods had become a mere bailee or warehouseman; shall be liable jointly with the vendor there that, therefore, the statute, as applied to of."

the transaction, was not a regulation of

commerce; and, further, that, as Meece had Messrs. Lawrence Maxwell, Jr., E. F. not ordered the whisky, there was no conTrabue, and Joseph S. Graydon for plain-tract for the sale of it in Cincinnati, but tiff in error.

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.

mony showing that the company's agent at

Cincinnati knew that the whisky had not Mr. Justice Brewer delivered the opinion been ordered by Meece, yet its agent in of the court:

Kentucky was so informed, and, therefore, The testimony showed that the package, the company was possessed, through its containing a gallon of whisky, was shipped agent, of knowledge that there was no infrom Cincinnati, Ohio, to George Meece, at terstate transaction, and, with that knowl. East Bernstadt, Kentucky. The transaction edge, sold the whisky to Meece. But that was therefore one of interstate commerce, the agent consented to hold the whisky unand within the exclusive jurisdiction of Con- til Saturday did not destroy the character gress. The Kentucky statute is obviously of the transaction as one of interstate coman attempt to regulate such interstate com- merce is settled by the recent case of Hey.

This is hardly questioned by the man v. Southern R. Co. 203 U. S. 270, 51 L. court of appeals, and is beyond dispute un- ed. 178, 27 Sup. Ct. Rep. 104. In that case der the decisions of this court.

whisky had been forwarded to a party in In Vance v. W. A. Vandercook Co. 170 U. Charleston, South Carolina, and after its S. 438, 444, 42 L. ed. 1100, 1103, 18 Sup. arrival at Charleston was placed in the Ct. Rep. 674, 676, Mr. Justice White, deliver warehouse of the railroad company by its ing the opinion of the court, said:

agent, and there seized by constables, as“Equally well established is the proposi- serting their right so to do under the distion that the right to send liquors from one state into another, and the act of sending was made and sustained by the supreme

pensary law of South Carolina. The point the same, is interstate commerce, the regu- court of the state of Georgia, in which state lation whereof has been committed by the

an action had been brought against the comConstitution of the United States to Con. gress, and, hence, that a state law which pany for the value of the goods, that when denies such a right, or substantially inter

the goods were placed in the warehouse the feres with or hampers the same, is in con.

carrier was thenceforward liable only as a flict with the Constitution of the United warehouseman. In passing upon this conStates."

tention we said (p. 276, 51 L. ed. p. 178, 27 In Rhodes v. Iowa, 170 U. S. 412, 426, Sup. Ct. Rep. p. 107): 42 L. ed. 1088, 18 Sup. Ct. Rep. 664, 669, it

“As the general principle is that goods was held that the Wilson act [26 Stat. at moving in interstate commerce cease to be L. 313, chap. 728, U. S. Comp. Stat. 1901, such commerce only after delivery and sale p. 3177] “was not intended to and did not in the original package, and as the settled cause the power of the state to attach to rule is that the Wilson law was not an an interstate commerce shipment, whilst the abdication of the power of Congress to regumerchandise was in transit under such ship. late interstate commerce, since that law

merce.

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 con- The judgment of the Court of Appeals of cerned with whether, under the law of any Kentucky is reversed and the case remanded particular state, the liability of a railroad for further proceedings not inconsistent with company as carrier ceases and becomes that this opinion. of a warehouseman on the goods reaching their ultimate destination, before notice and Mr. Justice Harlan dissents. before the expiration of a reasonable time for the consignee to receive the goods from the carrier. For, whatever may be the divergent legal rules in the several states con- | ADAMS EXPRESS COMPANY, Piff. in Err., cerning the precise time when the liability

v. of a carrier as such in respect to the car- COMMONWEALTH OF KENTUCKY. riage of goods ends, they cannot affect the general principle as to when an interstate This case is governed by the decision in shipment ceases to be under the protection Adams Express Company v. Kentucky, ante, of the commerce clause of the Constitution, p. 606. and thereby comes under the control of the state authority.”

[No. 332.] With reference to the testimony as to the Argued April 17, 18, 1907.

, Decided May knowledge by the company of the fact that

13, 1907. the whisky had not been ordered by the consignee, it is sufficient to say that the aver- N ERROR to the Court of Appeals of ment in the indictment is that the express the State of Kentucky to review a judg. company was engaged in the business of a ment which affirmed a conviction in the common carrier of packages, etc., and that Circuit Court of Knox County, in that the shipment and delivery were made and state, under an indictment charging an exdone in the usual course of its business. press company with violating the state loThis excludes necessarily the assumption cal option law by carrying and delivering that the transaction was one of sale by the a C. 0. D. interstate shipment of intoxicatexpress company at East Bernstadt, and of ing liquors. Reversed. course the company was under no obligation See same case below, 29 Ky. L. Rep. 224, to offer testimony in support of that which 5 L.R.A.(N.S.) 630, 92 S. W. 932. the state admitted to be the fact.

Messrs. Lawrence Maxwell, Jr., E. F. We do not mean to intimate that an ex- Trabue, and Joseph S. Graydon for plainpress company may not also be engaged tiff in error. in selling liquor in a state, contrary to its Messrs. N. B. Hays and Charles H. Morris laws, or that the fact that the consignee for defendant in error. did not order a shipment might not be evidence for a jury to consider upon the ques- Mr. Justice Brewer delivered the opinion tion whether the company was not, in addi- of the court: tion to its express business, also selling This case differs from the preceding in liquor contrary to the statutes. It is enough the fact that it was tried by the court to hold, as we do, that under the averments without a jury. In all other respects it is of this indictment such testimony is im- substantially the same. There was the same material. It is, of course, a question of averment in the indictment; and, more than fact whether a carrier is confining itself that, there was an express stipulation made strictly to its business as a carrier, or par- between counsel, pending the trial, in these ticipating in illegal sales. The consignor words: alone may be trying to evade the statute. "It is further agreed at this point that He may forward the liquors in the expecta- the whisky about which the witness testition that the consignee will, when informed fied was delivered by the Adams Express of their arrival, take and pay for them. Company and received by it in its office in So the fact that there is no previous order Cincinnati in the usual course of business by the consignee may not be conclusive of as a common carrier, and carried by it to the carrier's wrongdoing, but still it is en- Barbourville, Kentucky, by the method comtitled to consideration in determining that monly known as C. 0. D.” question.

There is nothing, therefore, to distinguish Much as we may sympathize with the this case in principle from the preceding, efforts to put a stop to the sales of intoxi. and the same judgment will be entered in cating liquors in defiance of the policy of a this as in that. state, we are not at liberty to recognize any rule which will nullify or tend to weak- Mr. Justice Harlan dissents.

V.

I

error.

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

an order of whisky to be sent C. 0. D., for

the delivery of which the warrant herein was COMMONWEALTH OF KENTUCKY.

issued against the appellant company; that

upon this order the whisky in question was This case is governed by the decision in shipped to said Graham at Hodgensville, Adams Express Company v. Kentucky, ante, Kentucky, and delivered to him and the 606.

charges therefor paid to the appellant com

pany, who returned the same to the said [No. 583.]

house or firm in Cincinnati, Ohio. There

is no proof to show that the express comArgued April 17, 18, 1907. Decided May pany had any knowledge or information as 13, 1907.

to the contents of said package so delivered,

and there is nothing to show any notice to N ERROR to the Court of Appeals of the it whatever of the contents of said package.

State of Kentucky to review a judgment which affirmed a judgment of the Cir- “We, however, desire the court to pass cuit Court of Larue County, in that state, upon the question, in order that the many convicting an express company of violating complications growing out of transacthe state local option law by carrying and tions similar to this may be simplified, and delivering a C. O. D. interstate shipment of the multitude of litigations growing out of intoxicating. liquors. Reversed.

the same lessened, whether or not a comSee same case below, 30 Ky. L. Rep. 207, pany similar to the appellant can legally ac97 S. W. 807.

cept the price for whisky shipped into a Messrs. Edmund F. Trabue, Lawrence local option district contrary to law, thus Maxwell, Jr., John C. Doolan, Attilla Cox, constitute itself a collecting agency for one Jr., and Joseph S. Graydon for plaintiff in who is, under the shield of interstate com

merce, 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.

opinion that an express company has no in

herent right under the laws of this state Mr. Justice Brewer delivered the opinion or under the protection of interstate comof the court:

merce to assume a duty not required of it, This case, like the two preceding, was a

as a common carrier, and to do that which

is in violation of the laws of this state. prosecution of the express company for a

Because we believe that this record in its violation of the Kentucky statute in respect to “C. O. D.” shipments. It was tried present shape does not show that the apin the circuit court before a jury, which peal from the police court to the circuit returned a verdict of guilty, and fixed the court of Larue county was properly and penalty at $100 fine, which verdict was sus

legally taken, and for the further reason tained and judgment entered thereon by that the express company has no right, in the circuit court. The company appealed

violation of law, to accept the price in a to the court of appeals, which affirmed the local option district of whisky shipped C. judgment (30 Ky. L. Rep. 207, 97 s. w. 0. D., we ask that the judgment be af

firmed.” 807), and thereupon the case was brought here on writ of error.

In view of the concession and contention The consignee testified that he did not of the attorney general we are of the opingive an order for the shipment, while there ion that there is nothing to substantially was testimony on behalf of the consignor The same judgment, therefore, will be

distinguish this case from the preceding. that such an order was filed with it in the name of the consignee, and the shipment rendered in this case as in those. made upon that order. The brief of the attorney general in the court of appeals, Mr. Justice Harlan, dissenting: after referring to the testimony of a wit- I do not think that these are cases of ness on behalf of the company, said: legitimate interstate commerce. They show

"It will appear from his evidence that he only devices or tricks by the express comresides in Cincinnati, Ohio, and is manager pany to evade or defeat the laws of Kenfor a wholesale liquor firm located in said tucky relating to the sale of spirituous, city; that on March 21st, 1905, he received vinous, or malt liquors. I dissent from the an order filed as an Exhibit 'X' from Rich- opinion and judgment in each case.

27 S. S.-39.

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