MR. JUSTICE BLATCHFORD delivered the opinion of the court.
On the 26th of December, 1882, a grand juror, of the town of Rutland, in the county of Rutland and State of Vermont, made a written complaint, on his oath of office, before a justice of the peace of that county, that John O'Neil, of Whitehall, New York, on December 25th, 1882, at Rutland, at divers times, did "sell, furnish and give away intoxicating liquor, without authority," and contrary to the statute, and further, that O'Neil, at the March term, 1879, of the Rutland County court, had been convicted of selling, furnishing and giving away intoxicating liquors, against the law. Thereupon the justice issued a warrant for the arrest of O'Neil. He was arrested and brought before the justice, and pleaded not guilty.
The statute of Vermont under which the prosecution was instituted is embodied in §§ 3800 and 3802 of chapter 169 of the Revised Laws of Vermont of 1880, (pp. 734, 735,) in these words:
"Section 3800. No person shall, except as otherwise especially provided, manufacture, sell, furnish or give away, by himself, clerk, servant or agent, spirituous or intoxicating liquor, or mixed liquor of which a part is spirituous or intoxicating, or malt liquors or lager beer; and the phrase `intoxicating liquors' where it occurs in this chapter shall be held to include such liquors and beer.
"The word `furnish,' where it occurs in this chapter, shall apply to cases where a person knowingly brings into or transports within the State for another person intoxicating liquor intended to be sold or disposed of contrary to law, or to be divided among or distributed to others.
"The words `give away,' where they occur in this chapter, shall not apply to the giving of intoxicating liquor at private dwellings, or their dependencies, unless given to an habitual drunkard, or unless such dwelling or its dependencies become a place of public resort.
"Nothing in this chapter shall prevent the manufacture, sale and use of wine for the commemoration of the Lord's supper, nor the manufacture, sale and use of cider, or, for medical purposes only, of wine made in the State from grapes or other fruits, the growth of the State, and which is without the admixture of alcohol or spirituous liquor, nor the manufacture by any one for his own use of fermented liquor.
"But no person shall sell or furnish cider or fermented liquor at or in a victualling house, tavern, grocery, shop, cellar or other place of public resort, or at any place to an habitual drunkard."
"Sec. 3802. If a person by himself, clerk, servant or agent, sells, furnishes or gives away; or owns, keeps or possesses with intent to sell, furnish or give away, intoxicating liquor or cider in violation of law, he shall forfeit for each offence to the State, upon the first conviction ten dollars and costs of prosecution; on the second conviction he shall forfeit for each offence twenty dollars and costs of prosecution, and shall also be imprisoned one month; and on the third and subsequent convictions he shall forfeit for each offence twenty dollars and the costs of prosecution, and shall also be imprisoned not less than three months nor more than six months."
The complaint was in the form prescribed by § 3859 of the Revised Laws of Vermont, for offences against § 3802; and § 3860 provides that under such form of complaint "every distinct act of selling" may be proved, "and the court shall impose a fine for each offence."
The justice, after hearing the proofs of the parties, entered judgment finding O'Neil guilty of 457 offences, second conviction, of selling intoxicating liquors in violation of chapter 169 of the Revised Laws, and adjudging that he pay to the treasurer of the State a fine of $9140, and the costs of prosecution, taxed at $472.96, and be confined at hard labor in the house of correction at Rutland for the term of one month,
In the county court O'Neil pleaded not guilty, and the case was tried by a jury. He did not take the point, either before the justice of the peace or the county court, that there was any defect or want of fulness in the complaint. Any such point was waived, by the failure to take it. Besides, it did not involve any Federal question. The question of the consolidation of several offences in one complaint is purely a matter of state practice, and it is a familiar rule of criminal law, that time need not be proved as alleged.
The jury found O'Neil guilty of 307 offences "of selling intoxicating liquor without authority and contrary to the laws of Vermont, as of a second conviction for a like offence." He filed exceptions, which state that, for the purpose of the trial, he admitted the following facts: "The respondent, John O'Neil, of Whitehall, in the county of Washington and State of New York, is a wholesale and retail dealer in wines and liquors at said Whitehall, and has been so engaged in business there for more than three years last past, and that said business by him carried on is a lawful and legitimate business under the laws of the State of New York as conducted by him there. That during the last three years the respondent has received at his store, in said Whitehall, three hundred and seven separate and distinct orders by mail, telegraph and express, for specified and designated small quantities of intoxicating liquors, from as many different parties residing in Rutland, in the State of Vermont. The orders so sent by express were in the form of a letter addressed to the said John O'Neil at Whitehall aforesaid, and the letter attached to a jug, and the jug, with the letter attached, was delivered by said parties to the National Express Company, in Rutland, and charges
The exceptions state that O'Neil requested the court to instruct the jury that the facts set forth in his admission did not constitute an offence against the statute, under the complaint in the cause, but the court refused so to hold, and he excepted; that he requested the court also to instruct the jury that, under the facts set forth in his admission, they ought to find him not guilty, but the court refused so to instruct the jury, and he excepted; that the court charged the jury, that if they believed the facts set forth in the admission to be true, the same made a case upon which the jury should find a verdict of guilty against him, to which instruction he excepted; that evidence was given that at the March term, 1879, of the Rutland County court, he was convicted of selling, furnishing and giving away intoxicating liquors; and that the court adjudged, upon the verdict and the evidence, that he was guilty of 307 offences of selling intoxicating liquor without authority, as of a second conviction. The exceptions were allowed, and for their trial the sentence was respited, execution stayed and the cause passed to the Supreme Court of Vermont.
The judgment of the county court, as entered, was, that O'Neil pay a fine of $6140, and the costs of prosecution, taxed at $497.96, and stand committed until the sentence should be complied with; and that if the said fine and costs, and costs of commitment, ascertained to be 76 cents, the whole aggregating $6638.72, should not be paid before March 20, 1883, he should be confined at hard labor, in the house of correction at Rutland, for the term of 19,914 days.
The case was heard in the Supreme Court, and a decision was rendered in the general term, the Chief Judge and six Assistant Judges being present, at October term, 1885, which is reported in 58 Vermont, 140. The judgment of the Supreme Court was, that the judgment of the county court was not in anywise erroneous or defective and there was not any error in the proceedings. O'Neil has sued out a writ of error from this court to review that judgment.
The opinion of the Supreme Court of Vermont was delivered by Chief Judge Royce. The case being one for selling intoxicating liquors contrary to law, the court stated the question to be, whether the liquors were sold by O'Neil, in contemplation of law, in Rutland County, and said that the answer depended upon whether the National Express Company, by which the liquors were delivered to the consignees thereof, was in law the agent of the vendor or of the vendees; that, if the purchase and sale of the liquors was fully completed in the State of New York, so that, upon delivery of them to the express company for transportation, the title vested in the consignees, as in the case of a completed and unconditional sale, then no offence against the law of Vermont had been committed; but that if, on the other hand, the sale, by its terms, could become complete, so as to pass the title in the liquors to the consignees, only upon the doing of some act, or the fulfilling of some condition precedent, after they reached Rutland, then the rulings of the county court upon the question of the offence were correct.
The court then said: "The liquors were ordered by residents of Vermont from dealers doing business in the State of New York, who selected from their stock such quantities and kinds of goods as they thought proper in compliance with the terms of the orders, put them up in packages, directed them to the consignees, and delivered them to the express company as a common carrier of goods for transportation, accompanied with a bill, or invoice, for collection. The shipment was in each instance which it is necessary here to consider, `C.O.D.;' and the cases show that the effect of the transaction was a direction by the shipper to the express company not to deliver the goods to the consignees except upon payment of the amount specified in the C.O.D. bills, together with the charges for the transportation of the packages and for the return of the money paid. This direction was understood by
The court then remarked, that whether or not, and when, the legal title in property sold passes from the vendor to the vendee, is always a question of the intention of the parties, which is to be gathered from their acts and all the facts and circumstances of the case taken together, and cited Mason v. Thompson, 18 Pick. 305; Benjamin on Sales, §§ 311, 319, note c, and 320, note d; and Robert's Vermont Digest, 610, et seq. It then proceeded: "In the cases under consideration," (viz.: the present case, and another case against O'Neil, for keeping intoxicating liquors with the intent to sell, etc.,) "the vendors of the liquors shipped them in accordance with the terms of the orders received, and the mode of shipment was as above stated. They delivered the packages of liquors, properly addressed to the several persons ordering the same, to the express company, to be transported by that company and delivered by it to the consignees upon fulfilment by them of a specified condition precedent, namely, payment of the purchase price and transportation charges and not otherwise. Attached to the very body of the contract, and to the act of delivery to the carrier, was the condition of payment before delivery of possession to the consignee. With this condition unfulfilled and not waived, it would be impossible to say that a delivery to the carrier was intended by the consignor as a delivery to the consignee, or as a surrender of the legal title. The goods were intrusted to the carrier to transport to the place of destination named, there to present them for acceptance to the consignee, and if he accepted them and paid the accompanying invoice and the transportation charges, to deliver them to him; otherwise, to notify the consignor and hold them subject to his order. It is difficult to see how a seller could more positively and unequivocally express his intention not to relinquish his right of property or possession in goods until payment of the purchase price than by this method of shipment. We do not think the case is distinguishable in principle from that of a vendor who sends his clerk or agent to deliver the goods, or forwards them to, or makes them
The foregoing comprises all that was said by the Supreme Court material to the case now before us.
It is assigned for error, that the Supreme Court held (1) that the sale of intoxicating liquor in New York, by a citizen of that State lawfully, was a crime under the statute law of Vermont, when the liquor so sold was shipped C.O.D. to the purchaser in Vermont, by his direction; (2) that a shipment of liquors by a common carrier from New York, by a citizen of that State to a purchaser in Vermont, under the circumstances of this case, was a crime under the statute of Vermont, which could be punished by the courts of Vermont; (3) that such statute was not in conflict with the clause of the Constitution of the United States which gives Congress power to regulate commerce with foreign nations and among the several States and with the Indian tribes; (4) that O'Neil, under the facts in this case, was amenable to the statute law of Vermont prohibiting the sale, furnishing and giving away of intoxicating liquors; and (5) that the construction the court gave to that statute, and its application to the facts of this case, was not in conflict with § 8 of article 1 of the Constitution of the United States, in regard to the regulation of commerce.
It is contended for the State of Vermont that this court has no jurisdiction of this case, because the record does not present a Federal question. We are of opinion that this contention
No point on the commerce clause of the Constitution of the United States was taken in the county court, in regard to the present case, or considered by the Supreme Court of Vermont. One reason for this may have been that the decision in Peirce v. New Hampshire, 5 How. 504, had not theretofore been in terms overruled or questioned by this court, the cases of Bowman v. Chicago &c. Railway Co., 125 U.S. 465, and Leisy v. Hardin, 135 U.S. 100, not having been then decided. The only points raised in the county court, according to the exceptions, were, that the facts set forth in the written admission of O'Neil did not constitute an offence against the statute of Vermont under the complaint, and that he ought to be found not guilty under the facts so set forth. The matters thus excepted to were too general to call the attention of the state court to the commerce clause of the Constitution, or to any right claimed under it. Farney v. Towle, 1 Black, 350; Day v. Gallup, 2 Wall. 97; Edwards v. Elliott, 21 Wall. 532; Warfield v. Chaffe, 91 U.S. 690; Susquehanna Boom Co. v. West Branch Boom Co., 110 U.S. 57; Clark v. Pennsylvania, 128 U.S. 395.
The only question considered by the Supreme Court, in its opinion, in regard to the present case, was whether the liquor in question was sold by O'Neil at Rutland or at Whitehall, so as to fall within or without the statute of Vermont, and the court arrived at the conclusion that the completed sale was in Vermont. That does not involve any Federal question.
In its opinion in 58 Vermont, 140, the Supreme Court considered not only the present case and the case before referred to against O'Neil for keeping intoxicating liquors with intent to sell, etc., but also two other cases, being proceedings in rem for the condemnation of intoxicating liquor on its seizure, in which latter two cases the National Express Company was claimant, and in one of them the liquors were forfeited, while in the other of them some of the liquors, (being those which had been paid for to the shipper at Whitehall, New York,) were returned to the claimant and the remainder forfeited.
The Supreme Court of Vermont decided the case before us upon a ground broad enough to maintain its judgment without considering any Federal question. No Federal question was presented for its decision, as to this case, nor was the decision of a Federal question necessary to the determination of this case, nor was any actually decided, nor does it appear that the judgment as rendered could not have been given without deciding one. Hale v. Akers, 132 U.S. 554, 565, and cases there cited; San Francisco v. Itsell, 133 U.S. 65; Hopkins v. McLure, 133 U.S. 380; Blount v. Walker, 134 U.S. 607; Beatty v. Benton, 135 U.S. 244; Johnson v. Risk, 137 U.S. 300; Butler v. Gage, 138 U.S. 52; Beaupré v. Noyes, 138 U.S. 397; Leeper v. Texas, 139 U.S. 462; Henderson Bridge Co. v. Henderson City, 141 U.S. 679; Hammond v. Johnston, 142 U.S. 73; New Orleans v. New Orleans Water Works Co., 142 U.S. 79.
It was entirely immaterial how the liquor sold by O'Neil at
Moreover, under the practice in the Supreme Court of Vermont, the very error relied upon must appear affirmatively in the exceptions. Sequin v. Peterson, 45 Vermont, 255; State v. Preston, 48 Vermont, 12; Hathaway v. National Life Ins. Co., 48 Vermont, 335; State v. Brunelle, 57 Vermont, 580; Spaulding v. Warner, 57 Vermont, 654; Rowell v. Fuller, 59 Vermont, 688.
The result is that the writ of error must be
MR. JUSTICE FIELD dissenting.
I am compelled to disagree with my associates in their disposition of this case. The act charged as an offence in the State of Vermont was in my judgment a lawful transaction in the State of New York. It will, I think, strike many men with surprise to learn that filling an order for the purchase of goods and their transmission from one State by an express carrier, to be paid for on delivery to the buyer in another State can be turned into a criminal offence of the person filling the order in the State where he was not present.
The offence charged consisted of selling, furnishing and giving away intoxicating liquor in Vermont, without authority of law, yet the accusation presenting it makes, no mention of any person to whom the article was sold, furnished or given. Here is a copy of the document:
"To Wayne Bailey, Esq., justice of the peace within and for the county of Rutland, comes J.P. Cain, grand juror, of the town of Rutland, in said county of Rutland, and on his oath of office complaint makes that John O'Neil, of Whitehall,
The accusation describes only a single offence; yet, by the addition of the words "at divers times," that document is held to justify a trial and uphold a conviction for three hundred and seven distinct offences, only one of which is set forth in the accusation, and that defectively, all the others being brought within it by the use of those words.
The punishment imposed was one exceeding in severity, considering the offences of which the defendant was convicted, anything which I have been able to find in the records of our courts for the present century. By the justice of the peace in Vermont, before whom the defendant was accused, he was convicted of four hundred and fifty-seven distinct offences, and sentenced to pay to the treasurer of the State a fine of $9140 and the costs of prosecution taxed at $472.96, and be confined at hard labor in the house of correction in the county of Rutland for one month, and, in case the fine and costs should not be paid on or before the expiration of this month's imprisonment, to be confined there at hard labor for the further term of twenty-eight thousand eight hundred and thirty-six days, to be computed from the expiration of the month's imprisonment. This was more than seventy-nine years for selling, furnishing and giving away, as alleged, intoxicating liquor, which took place in New York, to be delivered in Vermont. An appeal having been taken from that judgment to the county court of Rutland County, a jury was called and the accused pleaded not guilty, and although but one charge was specified, and that defectively, in the complaint, which was the one filed before the justice of the peace, the jurors found him guilty of three hundred and seven distinct offences of selling intoxicating liquors without authority and contrary to the laws of Vermont. He was thereupon sentenced
Had he been found guilty of burglary or highway robbery, he would have received less punishment than for the offences of which he was convicted. It was six times as great as any court in Vermont could have imposed for manslaughter, forgery or perjury. It was one which, in its severity, considering the offences of which he was convicted, may justly be termed both unusual and cruel.
That designation, it is true, is usually applied to punishments which inflict torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs and the like, which are attended with acute pain and suffering. Such punishments were at one time inflicted in England, but they were rendered impossible by the Declaration of Rights, adopted by Parliament on the successful termination of the revolution of 1688, and subsequently confirmed in the Bill of Rights. It was there declared that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. From that period this doctrine has been the established law of England, intended as a perpetual security against the oppression of the subject from any of those causes. It is embodied in the Eighth Amendment to the Constitution of the United States, and in the constitutions of several of the States, though Mr. Justice Story states in his Commentaries on the Constitution "that the provision would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government should authorize or justify such atrocious conduct." (§ 1903.) The inhibition is directed, not only against punishments of the character mentioned, but against all punishments
I have stated these particulars of the proceedings and of the judgment of the state courts, to show what great wrongs were inflicted, under the forms of law, upon the defendant. If there is no remedy for them, there is a defect in our laws or in their administration which cannot be too soon corrected. I think there is a remedy, and that it should be afforded by this court.
The sales for which the defendant was prosecuted were either completed transactions in New York, passing there the title to the goods, leaving their transportation to the purchaser in Vermont as a matter for his direction; or, they were mere executory contracts of sale in New York to be completed by delivery of the goods to the purchaser in Vermont.
If the first position be the true one, then Vermont, in attempting to punish the defendant, assumed to punish him for an exterritorial offence by her statute, or to apply her statute to an offence not embraced by its terms. If the former of these alternatives be the one she takes, that is, to punish the defendant for an exterritorial offence, she violates the right of a citizen of New York, and a right of that citizen, which depends upon the relation of his State to the Union, and, as that relation forbids a resort to arms, or negotiation, or any international procedure for protection of her citizens, it belongs to that class of rights which pertain to a citizen of the United States. His rights as such citizen are guarded and must be
But if the statute of Vermont does not reach the defendant by exterritorial operation, and the sales were only inchoate in New York, and consummated by delivery in Vermont, then the acts of selling were exterritorial, and the delivery was by interstate transportation. Until that transportation was completed and the packages of goods were delivered to the purchasers, they were under the commercial power of Congress and not the police power of the State, and the intrusion of the latter to defeat the full protection of the Congressional power was necessarily void.
I assume for this case, as correct, the position of the majority of this court and of the Supreme Court of Vermont, that the sales were only initiated in New York, and were there merely executory contracts, and were not consummated until delivery of the goods to the purchaser in Vermont. As such they were transactions of interstate commerce which the latter State could not prevent, and for which she could not impose any penalty upon the defendant, though she might place such restrictions upon the disposition of the liquor, as the safety and health of the community might require, after it was brought within her limits, and had become part of the general property there. Against the proceedings resulting in the penalty inflicted, the defendant invoked — and in my judgment was entitled to receive — protection under the clause of the Constitution of the United States vesting in Congress the exclusive power to regulate commerce among the States. The refusal of the state court to afford the protection is sufficient ground for this court to take jurisdiction to review the judgment of that court, and I dissent from my associates in their declining to take such jurisdiction.
On the trial before the county court certain facts were admitted by the accused which constitute the grounds of his conviction. They are given in the opinion of the majority, and it is only necessary to state so much of them as will show the pertinency of the objections I take. The accused resided at Whitehall, in the State of New York, a flourishing town of
He was a wholesale and retail dealer in wines and liquors at that place, and had been there engaged in that business for more than three years. His business was a lawful one under the laws of New York. During those three years he received at his store in Whitehall three hundred and seven separate and distinct orders by mail, telegraph or express for specified small quantities of intoxicating liquors from as many different parties residing in Rutland, Vermont. The orders requested the accused to send the liquors to the parties ordering them at Rutland by the National Express Company, a New York corporation and common carrier, doing business between New York and Montreal, including the route between Whitehall and Rutland, and in more than one-half the number of instances directed that the liquors be sent C.O.D., meaning cash on delivery, and in other instances where the orders did not specify this mode it was the intention of the purchaser to have the goods thus sent to him.
It was the usual course of trade for merchants receiving an order from a considerable distance for goods in small quantities to send the same by express, C.O.D., when the order was not from a regular customer or a person of known responsibility. Upon the receipt of the orders the accused in each instance measured out the liquors called for at his store in Whitehall, put the same in the jugs or other vessels sent, and attached to each one a tag having the address of the party ordering the liquor. He then delivered the package to the express company, each package having upon the tag the name and business of the accused, and not being in any manner disguised, and being sealed with wax. He delivered to the express company with each package a bill in an envelope marked C.O.D., endorsed with instructions not to deliver the same without receiving payment therefor.
He did nothing after the packages were delivered by him at Whitehall; and the several consignees received the same and made payment therefor to the carrier at Rutland.
The case was carried to the Supreme Court of the State, and by it the judgment below was affirmed. In giving its opinion that court stated that the case being one for selling intoxicating liquors the question was whether they were sold by the accused in contemplation of law in Rutland County, and that the answer depended upon the question whether the National Express Company, by which the liquors were delivered to the consignees thereof, was in law the agent of the vendor or of the vendees. It stated that the effect of the transaction was a direction by the shipper to the express company not to deliver the goods to the consignees except upon payment of the amount specified in the C.O.D. bills, together with the charges for the transportation of the packages and for the return of the money paid; and that this direction was so understood by the express company, which received the shipments coupled therewith. This statement ignores the fact in the admission of the accused, which was submitted to the jury, that the express company was the agent of the Rutland parties, the expenses of that company being paid by the senders of the orders, a fact which showed that the company acted for the purchasers and not for the vendor in the several cases in the carriage to Vermont of the articles sold.
The several transactions appear to have been completed according to the admission, so far as the vendor was concerned, at Whitehall in the State of New York. He was not in Vermont, where the alleged offences were committed. He had no clerk, or agent, or office for the sale of liquors in that State or at any other place than Whitehall. As said by counsel, the
Transactions like those in controversy, that is, purchases of small quantities of goods upon orders, the packages to be shipped by the vendor with a direction to collect the amount of the price on delivery, take place in this country every month to the amount of millions of dollars. Orders are sent all over the country, for articles of small bulk; to California for fruits and wines, to Florida for oranges, to Kentucky for whiskies, and to the dealers in our large cities in general merchandise for small parcels of different kinds. They are transmitted without hesitation by the vendors upon the receipt of such orders, often even without knowledge of the parties sending them, their security being the retention of a lien upon the property shipped until the cash is actually paid. Amazement would strike the large class of merchants engaged in transmitting goods in this way from one portion of the country to another, if they were told that they thereby rendered themselves liable to the penal statutes of the States to which the goods were sent in compliance with the orders of the purchasers, and might be prosecuted for criminal offences committed in those States, which they had never visited and with whose laws they never intended to interfere. I do not believe that any such danger is incurred by them by engaging in this mode of interstate commerce. None of the cases which I have seen, and my examination has been somewhat extended, has sustained any such doctrine. Whether transactions of the character mentioned are to be deemed absolute sales of the goods on the part of the vendor, with a proviso for withholding their delivery until actual payment, so as to preserve a lien for the price, or only as executory contracts of sale not completed until actual delivery, there is a diversity of opinion. Pilgreen v. The State, 71 Alabama, 368; Dutton v. Solomonson, 3 Bos. & Pul. 582; Garland v. Lane, 46 N.H. 245; Orcutt
But in either view, whether considered as absolute sales or executory contracts of sale, they were, as already stated, transactions of interstate commerce. They were made between citizens of different States, and involved the transportation of the article sold from one State to another. A sale of an article between such citizens and its transportation from one State to another for delivery to the purchaser are the essential elements of interstate commerce. As said by this court in Welton v. State of Missouri, 91 U.S. 275, 280, commerce "comprehends intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale and exchange of commodities between the citizens of our country and the citizens or subjects of other countries, and between the citizens of different States."
In County of Mobile v. Kimball, 102 U.S. 691, 702, this court said: "Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale and exchange of commodities. For the regulation of commerce as thus defined there can be only one system of rules applicable alike to the whole country; and the authority which can act for the whole country can alone adopt such a system. Action upon it by separate States is not, therefore, permissible."
In the case of the Daniel Ball, 10 Wall. 557, 565, this court said: "Whenever a commodity has begun to move, as an article of trade, from one State to another, commerce in that commodity, between the States has commenced." See also Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196; Brown v. Houston, 114 U.S. 622; Pickard v. Pullman Southern Car Co., 117 U.S. 34; Robbins v. Shelby Taxing District, 120 U.S. 489; Steamship Co. v. Pennsylvania, 122 U.S. 326.
The exclusive and protecting power of Congress over interstate commerce is not confined to that commerce which consists of wholesale business, but extends to all cases of the sale,
The transactions considered in this case, which extended over a period of three years, cannot be described without showing that they embody the elements which constitute interstate commerce — sales of goods by a citizen of one State to a citizen of another State and their transportation between the States in their delivery to the purchaser. These facts must have been seen by the Supreme Court of Vermont. They were facts, constantly presenting themselves, and could not have been overlooked. Nor can it make any difference what motives may be imputed to the parties on the one side in selling, and on the other in purchasing the goods; the only inquiry which can be considered, is, were the goods bought and sold subjects of lawful commerce, for if so, they were, in their transportation between the parties — citizens of different States — until their delivery to the purchaser or consignee in the completion of the contracts of sale, under the protection of the commercial power of Congress. It is not necessary, to give this court jurisdiction to review the judgment of that court, that the record should show that the objection that the transactions were those of interstate commerce was specifically taken in terms in the court below; it is sufficient if the facts of the record show that the question of their being transactions of that character was involved in the case, though the court below may state in various forms that it did not deem it necessary to consider it. In Murray v. Charleston, 96 U.S. 432, 441, it was held that whenever rights, acknowledged and protected by the Constitution of the United States, are denied or invaded by state legislation, which is sustained by the judgment of a state court, this court is authorized to interfere; that the jurisdiction to reëxamine such a judgment cannot be defeated by showing that the record does not in direct terms refer to a constitutional provision, nor expressly state that a Federal question was presented; and that the true jurisdictional test is, whether it appears that such a question was decided adversely to the Federal right. Mr. Justice Strong,
If the vendor had, during the same period of three years, sold every third or fourth day a box of fruit or a package of clothing to the vendees in Vermont, payable on delivery, the transactions would have been of the same character as those under consideration — those of interstate commerce — and I doubt whether a question on this point would have been raised by any one. The present transactions, in the fact that the articles are liquors, are in no respect different in character. The decision made by the court below could not have been rendered without its assuming that the facts which constitute interstate commerce were transactions of a different nature.
If that court could, by that assumption, bind this court, the supervising authority of our jurisdiction would be lost in every case by the simple assertion of the court below that it
There were at the same time three other cases before the court arising upon substantially the same facts; one against the same respondent and the other two being proceedings for the condemnation of the liquors seized. They were considered together, and the opinion of the court, delivered by its Chief Justice, covered them all and discussed the principal questions involved. It was prepared by him and handed to the reporter, and under the latter's supervision it was published in the official reports of the decisions of the court, and is found in vol. 58 of the Vermont Reports. The law of Vermont requires the judges of the Supreme Court to prepare and furnish to the reporter, each year, reports of the opinions delivered by them, and the reporter to prepare them for publication and to superintend the printing. In looking at the
In another paragraph the court refers directly to the commercial clause of the Constitution and repudiates its application. It says: "Concerning the claim that section eight of the Federal Constitution, conferring upon Congress the exclusive right to regulate commerce among the States, has application, it is sufficient to say that no regulation of, or interference with, interstate commerce is attempted," and the court concludes its opinion covering all the cases by holding that in the two cases of the State v. O'Neil the respondent takes nothing by his exceptions. That is to say, the court, not denying that the question was raised in the O'Neil cases, passed it off with the statement that no regulation of or interference with commerce was attempted, thus brushing out of consideration the Federal question by assuming that the transactions were purely of state cognizance. In another paragraph the state court expresses disapprobation of the claim that the Federal authority was supreme in matters of interstate commerce. "If it were competent," said that court, "for persons or companies
And in Leisy v. Hardin, 135 U.S. 100, 119 this court cites from a previous opinion the following language as to the power of Congress over subjects of interstate commerce, declaring that its doctrine is now firmly established: "Where the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the States, such as transportation between the States, including the importation of
In another paragraph of the opinion the state court again refers to the character of the transaction between the vendor in New York and the vendee in Vermont, and the effect of the instruction to the carrier not to deliver the goods except upon prior or contemporaneous payment of the price, upon which it says: "The contract of sale, therefore, remained inchoate or executory while the goods were in transit, or in the hands of the express company, and could only become executed and complete by their delivery to the consignee. There was a completed executory contract of sale in New York, but the completed sale was, or was to be, in this State," (Vermont). No better description of a transaction of interstate commerce could be given: an executory contract of sale made in one State by a citizen thereof to a citizen of another State, and a completed sale under that contract by the transportation and delivery to the purchaser in the latter State.
In the face of these extracts from the opinion of that court, it strikes me with surprise that any one can contend that in deciding the case it did not consider the question of interstate commerce. It seems to me to have been the principal question before it, and the only one which gave it any trouble in the disposition of the case. But notwithstanding these statements, and the character of the transactions themselves, which do not admit, in my judgment, of any accurate description without involving, necessarily, elements of interstate commerce, the assertion is made by the majority, with great positiveness, as though it would brush aside opposing considerations, that "no Federal question was presented for the decision of the court as to this case, nor was the decision of a Federal question necessary to the determination of this case, nor was any actually decided, nor does it appear that the judgment as rendered could not have been given without deciding one." If this assertion could be received with half the confidence with which it is made, the whole controversy would be settled, and any
It is true that the presumption of law is that the majority of the court are right and that I am wrong; yet, in the face of this presumption, and the positiveness with which the views of the majority are asserted, I cannot yield my convictions the other way, which were never clearer or stronger in any case.
I can conceive of nothing more direct and effective as an interference with the power of Congress over interstate commerce than for a State to hold that the act of transmitting an article to it from another State, in completion of a sale by delivery, is an offence against its laws for which the sender can be punished. Surely commerce between the States would be defeated entirely, or subject to the control of a State to which property might be sent, if it could hold the consummation of the sale of the article sent from another State to be itself a penal offence. And to say that there is no interference in such a case with the power of Congress is, in my humble judgment, and with all due respect to my associates, to trifle with substance by words.
Until Congress acts, every citizen in a State has a right to send lawful articles of commerce into another State. When they reach that State, and become a part of the general property there, they fall under the control of its lawfully established police regulations; but the commerce, which is subject to the control of Congress, necessarily carries the article into another State, and whether the title is vested in the purchaser there or when it starts from the State from which it is sent, is a matter of no consequence; the state power over the article only commences after it is once incorporated into the property of the State, and that does not take place until the transportation is completed and the delivery made. Interstate commerce is not confined to the sale of goods which have been fully paid
The necessity of some controlling power to regulate commerce both with foreign nations and among the States was one of the principal causes that led to the calling of the convention which adopted the present Constitution. As said by Chief Justice Marshall in Brown v. Maryland, 12 Wheat. 419, 445: "The oppressed and degraded state of commerce, previous to the adoption of the Constitution can scarcely be forgotten. It was regulated by foreign nations, with a single view to their own interests; and our disunited efforts to counteract their restrictions were rendered impotent by want of combination. Congress, indeed, possessed the power of making treaties; but the inability of the Federal government to enforce them had become so apparent as to render that power in a great degree useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the control over this important subject to a single government. It may be doubted whether any of the evils proceeding from the feebleness of the Federal government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the States. To construe the power so as to impair its efficacy, would tend to defeat an object, in the attainment of which the American public took, and justly took, that strong interest which arose from a full conviction of its necessity."
To sanction, therefore, the legislation of Vermont making the consummation of an act of interstate commerce, that is, the delivery of the article sold or agreed to be sold in another State to the purchaser or intended purchaser in Vermont, a penal offence, is, in fact, to defeat the very object of the grant to Congress. The decision of the Supreme Court of that State conflicts with a long line of previous decisions of this court running through the last quarter of a century, and with those of Bowman v. Chicago &c. Railway Co., 125 U.S. 465, and Leisy v. Hardin, 135 U.S. 100, since rendered, in which the power of Congress over commerce, foreign and interstate, has been exhaustively considered and doctrines declared covering every possible position that can be taken in this case.
In Bowman v. Chicago, &c. Railway Co. a law of Iowa forbidding, under penalties, common carriers to bring intoxicating liquors into the State from any other State or Territory, without being first furnished with a prescribed certificate, was declared invalid, because essentially a regulation of commerce among the States, and not sanctioned by the authority, express or implied, of Congress. It was accordingly held that this law could give no protection to the carrier in refusing to transport the goods into that State as requested by the shipper.
If requiring such a certificate as a condition for the importation of goods into a State was invalid as a regulation of commerce, much more so must a law be, which makes such importation upon a sale, not completed until by a delivery of the goods within the State to which they are transported, a
In Leisy v. Hardin the court said, giving expression to its often-repeated declarations, that the power vested in Congress to regulate commerce was complete in itself, acknowledging no limitations other than those prescribed in the Constitution, and was coëxtensive with the subjects on which it acted and could not be stopped at the external boundary of a State, but must enter its interior and be capable of authorizing the disposition of those articles which it introduced, so that they might become mingled with the common mass of property there.
These doctrines, thus clearly stated and supported by an almost unbroken line of decisions of this court for half a century, establish the invalidity of the action of the State of Vermont in making a sale of goods by a non-resident to its citizens, completed on the delivery of the property to them in the State, a penal offence.
It is true that when the decisions in these last two cases were rendered the personnel of this court was different from what it is at present. When Bowman v. Chicago &c. Railway Co. was decided, Justices Matthews, Miller and Bradley were members of this court and concurred in the decision. And when Leisy v. Hardin was decided the latter two Justices were still members and concurred in that decision.
These three Justices are no longer members of this court, but since they ceased to be members there has been no adjudication by it until the decision in this case, which, in any respect, changes its previous decisions upon the exclusive power of Congress over interstate commerce.
In Chapman v. Goodnow, 123 U.S. 541, 548, this court, in considering section 709 of the Revised Statutes, providing for a review of the final judgment or decree in a suit in the highest court of a State, and speaking of the right or immunity which might be claimed under the Constitution, or a treaty, or statute of the United States, and the decision against them, which would authorize the reëxamination of the judgment or decree, said: "We are aware that a right or immunity set up or claimed under the Constitution or laws of the United States may be denied as well by evading a direct decision thereon as by positive action. If a Federal question is fairly presented by the record, and its decision is actually necessary to the determination of the case, a judgment which rejects the claim, but avoids all reference to it, is as much against the right, within the meaning of § 709 of the Revised Statutes, as if it had been specifically referred to and the right directly refused." Here the claim was rejected, though all reference to it was not avoided. Jurisdiction therefore attached. Having jurisdiction to review the judgment for the denial by the state court of the exclusive power vested in Congress to regulate commerce among the States, there ought not to be any hesitation in declaring that the judgment of the state court should for that reason be reversed. If not reversed of what avail
And I go further than the consideration of the question of interstate commerce involved. Having jurisdiction of the case on the ground stated, I think we may look into the whole record. And if it appears from the proceedings taken and the rulings made in the court below, on questions brought to its notice, that the rights of the accused, affecting his liberty or his life, have been invaded, this court may exercise its jurisdiction for the correction of the errors committed. The Fourteenth Amendment declares that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and that no State shall deprive any person of life, liberty or property without due process of law. I agree, as held in In re Rahrer, 140 U.S. 545, that those inhibitions do not invest Congress with any power to legislate upon subjects which are within the domain of state legislation. They only operate as restraints upon state action, like the prohibitions upon legislation by the States impairing the obligation of contracts, or to pass a bill of attainder or an ex post facto law. But in all cases touching life or liberty I deem it the duty of this court, when once it has jurisdiction of a case, to enforce these restraints for the protection of the citizen where they have been disregarded in the court below, though called to its attention. I do not pretend that this court should take up questions not arising upon the record, but I do contend that it is competent for the court when once it has acquired jurisdiction of a case to see that the life or liberty of the citizen is not wantonly sacrificed because of some imperfect statement of the party's rights. We have now jurisdiction to hear writs of error in certain criminal
Section 997 of the Revised Statutes requires that there shall be annexed to and returned with a writ of error for the removal of a cause an assignment of errors, and Rule 21 of this court declares that when there is no assignment of errors, as required by that section, counsel will not be heard, except at the request of the court, and that errors not specified according to the rule will be disregarded. It adds, however, that the court at its option may notice a plain error not assigned or specified. This rule seems to provide for a case like the present; and I do not think we should be astute to avoid jurisdiction in a case affecting the liberty of the citizen.
In opening the record in this case, we not only see that the exclusive power of Congress to regulate commerce was invaded, but we see that a cruel as well as an unusual punishment was inflicted upon the accused, and that the objection was taken in the court below, and immunity therefrom was specially claimed. The Eighth Amendment of the Constitution of the United States, relating to punishments of this kind, was formerly held to be directed only against the authorities of the United States, and as not applicable to the States. Barron v. Baltimore, 7 Pet. 243. Such was undoubtedly the case previous to the Fourteenth Amendment, and such must be its limitation now, unless exemption from such punishment is one of the privileges or immunities of citizens of the United States, which can be enforced under the clause, declaring that
The rights thus recognized and declared are rights of citizens of the United States under their Constitution which could not be violated by Federal authority. But when the late civil war closed, and slavery was abolished by the Thirteenth Amendment, there was legislation in the former slave-holding States inconsistent with these rights, and a general apprehension arose in a portion of the country — whether justified or not is immaterial — that this legislation would still be enforced and the rights of the freedmen would not be respected. The Fourteenth Amendment followed, which declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The
While, therefore, the ten Amendments, as limitations on power, and, so far as they accomplish their purpose and find their fruition in such limitations, are applicable only to the Federal government and not to the States, yet, so far as they declare or recognize the rights of persons, they are rights belonging to them as citizens of the United States under the Constitution; and the Fourteenth Amendment, as to all such rights, places a limit upon state power by ordaining that no State shall make or enforce any law which shall abridge them. If I am right in this view, then every citizen of the United States is protected from punishments which are cruel and unusual. It is an immunity which belongs to him, against both state and Federal action. The State cannot apply to him, any more than the United States, the torture, the rack or thumbscrew, or any cruel and unusual punishment, or any more than it can deny to him security in his house, papers and effects against unreasonable searches and seizures, or compel him to be a witness against himself in a criminal prosecution. These rights, as those of citizens of the United States, find their recognition and guaranty against Federal action in the Constitution of the United States, and against state action in the Fourteenth Amendment. The inhibition by that Amendment is not the less valuable and effective because of the prior and existing inhibition against such action in the constitutions of the several States. The Amendment only gives additional security to the rights of the citizen. It was natural that it should forbid the abridgment by any State of privileges and immunities which the
When the objection was taken in the Supreme Court of Vermont that the punishment imposed by the county court was cruel and unusual and immunity from it was specially claimed, the answer of the court was that the punishment could not be said to be excessive or oppressive because the defendant had committed a great many offences; that if the penalty was unreasonably severe for a single offence the constitutional question might be urged, but that its unreasonableness was only in the number of offences which he had committed. I do not think this answer satisfactory. The inhibition is directed against cruel and unusual punishments, whether inflicted for one or many offences. A convict is not to be scourged until the flesh fall from his body and he die under the lash, though he may have committed a hundred offences, for each of which, separately, a whipping of twenty stripes might be inflicted. An imprisonment at hard labor for a few days or weeks for a minor offence may be within the direction of a humane government — but if the minor offences are numerous no authority exists to convert the imprisonment into one of perpetual confinement at hard labor such as would be appropriate only for felonies of an atrocious nature. It is against the excessive severity of the punishment, as applied to the offences for which it is inflicted, that the inhibition is directed.
I think the plaintiff in error should be allowed, under the 21st rule, to amend his assignment of errors, so as to present this objection for our consideration, or, that this court, under that rule, without any additional assignment, should take notice of the error, of its own motion; for if the denial by the court below of the immunity claimed against the cruel and unusual punishment imposed was an error, it was one of the gravest character, leaving the defendant to a life of misery
Here this dissenting opinion might close, as I have touched upon the two questions specially brought to the attention of the court below; but there are some expressions in the opinion of the court upon the procedure in the state courts to which I cannot assent, and these I will briefly notice.
The complaint against the accused describes, as I have said, only a single offence, that of selling, furnishing and giving away intoxicating liquor without authority. It designates no person or persons to whom such liquor was sold, furnished or given away, nor specifies any number of offences, but charges that the offence named was committed "at divers times." And yet he was tried and convicted under this complaint of three hundred and seven distinct offences, and punishment was imposed for each one. To the defective character of the complaint the majority of the court say, in their opinion, as though it was a sufficient answer, that the form of the complaint is authorized by the laws of Vermont, and that under it any number of offences may be proved; and that, as the accused did not take the point either before the justice of the peace or the county court that there was any defect or want of fulness in the complaint, such point was waived. To this I answer that the fact that the legislature of Vermont may have authorized the loose form of accusation used, and allowed the trial of a multitude of offences under an imperfect description of one, does not render the proceeding due process of law any more than if it had attempted to authorize trials of criminal offences without any accusation in writing. Due process
It is the established rule of the common law, which has prevailed in England and in this country since the revolution of 1688, if not for a period anterior to it, that in all criminal prosecutions the accused must be informed of the nature and cause of the accusation against him. It is the law of every civilized community, and in no case can there be, in criminal proceedings, due process of law where the accused is not thus informed. The information which he is to receive is that which will acquaint him with the essential particulars of the offence, so that he may appear in court prepared to meet every feature of the accusation against him. As said by Chief Justice Gibson of the Supreme Court of Pennsylvania in Hartmann v. Commonwealth, 5 Penn. St. 60, 66: "Precision in the description of the offence is of the last importance to the innocent; for it is that which marks the limits of the accusation and fixes the proof of it. It is the only hold he has on the jurors, judges as they are of the fact and the law."
MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE BREWER, dissenting.
I do not think that this writ of error should be dismissed for want of jurisdiction.
The Supreme Court of Vermont, at its October term, 1885, decided the following cases: State v. O'Neil, No. 27, the present
But if it were true that the court below did not, in fact, pass upon, but ignored, this question, with respect to O'Neil, and restricted its observations to the cases in which the National Express Company was claimant, it would not follow that this court is without jurisdiction to determine it. We have often held that a judgment of the highest court of the State which failed to recognize a Federal right, specially set up and claimed, ought not to be disturbed, unless its necessary effect was to deny that right, or where it proceeded, in part, upon another and distinct ground, not involving a Federal question, but sufficient, in itself, to maintain the judgment without reference to that question. San Francisco v. Itsell, 133 U.S. 65, 66; Beaupré v. Noyes, 138 U.S. 397, 401. Now, it may be true, as I think it is, under the facts of this case, that the title to the liquors sold by O'Neil did not pass, and he did not intend it should pass, from him upon the delivery to the express company, in New York, of the jugs or vessels containing the liquors, and, therefore, that the sales were not, in law, consummated until the liquors were received in Vermont and paid for there by the vendee. Still, the question remained, whether the sending of the liquors from Whitehall, New York, to Rutland, Vermont, was or was not interstate commerce protected by the Constitution of the United States. The contention of the defendant in this court, as it was in the court below, is, that, even if the sales were not consummated until the liquors were delivered to the respective vendees, he had
In view of what I have said, it is proper to state that, in my judgment, the sending by the defendant from Whitehall, New York, to Rutland County, Vermont, of intoxicating liquors, in jugs, bottles or flasks, to be delivered only upon the payment of the price charged for the liquors, were not, in any fair sense, transactions of interstate commerce protected by the Constitution of the United States against the laws of Vermont regulating the selling, giving away and furnishing of intoxicating liquors within its limits. The defendant, in effect, engaged in the business of selling, through agents, by retail, in Vermont, intoxicating liquors shipped by him, for that purpose, into that State from another State. What he did was a mere device to evade the statutes enacted by Vermont for the purpose of protecting its people against the evils confessedly resulting from the sale of intoxicating liquors. The doctrine relating to "original packages" of merchandise sent from one State to another State does not embrace a business of that character. But whether this be so or not is a question this court has jurisdiction to determine in the present case, and it is clearly the right of the defendant to have it determined If the jugs, bottles or flasks, containing intoxicating liquors sent into Vermont from the defendant's place of business over the border, were original packages, the shipment of which
But there is another reason why this writ of error should not be dismissed for want of jurisdiction. The defendant contended in the court below that the judgment of the Rutland County Court inflicted upon him, in violation of the Constitution of the United States, a punishment both cruel and unusual. It is not disputed that he distinctly made this point. And the question was decided against him in the court below. It is true the assignments of error do not, in terms, cover this point, but it is competent for this court to consider it, because we have jurisdiction of the case upon the grounds already stated. I fully concur with Mr. Justice Field, that since the adoption of the Fourteenth Amendment, no one of the fundamental rights of life, liberty or property, recognized and guaranteed by the Constitution of the United States, can be denied or abridged by a State in respect to any person within its jurisdiction. These rights are, principally, enumerated in the earlier Amendments of the Constitution. They were deemed so vital to the safety and security of the people, that the absence from the Constitution, adopted by the convention of 1787, of express guarantees of them, came very near defeating the acceptance of that instrument by the requisite number of States. The Constitution was ratified in the belief, and only because of the belief, encouraged by its leading advocates, that, immediately upon the organization of the Government of the Union, Articles of Amendment would be submitted to the people, recognizing those essential rights of life, liberty and property which inhered in Anglo-Saxon freedom, and which our ancestors brought with them from the mother country. Among those rights is immunity from cruel and unusual punishments, secured by the Eighth Amendment against Federal action, and by the Fourteenth Amendment against denial or abridgment by the States. A
Without noticing other questions, I am of opinion that upon the ground last stated the judgment should be reversed.
MR. JUSTICE BREWER authorizes me to say that in the main he concurs with the views expressed in this opinion.