The Circuit Judge having been called to the aid of the Court:
The opinion of the Court
en banc
was delivered by
Mr. Chile Justice Gary.
1
There are numerous exceptions, but it will not be necessary to consider them in detail, as the appellant’s attorneys state that the main question raised by them may thus be formulated: '
“Is an ‘order notify’ shipment of liquor, interstate in character, intended by the party to be notified for unlawful use, subject to seizure under the laws of South Carolina, before actual or constructive delivery to the party for whom, upon certain conditions, it is designed ?”
In the case of
Smith
v.
La Par,
67 S. C. 491, 46 S. E. 332, it is said:
“Liquor purchased in another State and shipped to the purchaser in this State is not contraband, being protected as an article of interstate commerce until it is delivered to the purchaser.
Rhodes
v.
Iowa,
170 U. S. 412 (18 Sup. Ct. 664, 42 L. Ed. 1088);
State
v.
Holleyman,
55 S. C. 244, 31 S. E. 362 (33 S. E. 366, 45 L. R. A. 567). The fact that the purchaser to whom it is consigned is engaged in the illicit sale of liquor, and purchases it for the purpose of resale, can make no difference; the liquor is none the less an article of interstate commerce, and cannot be legally seized until it is delivered to the consignee.”
The carrier, however, cannot claim the protection of the interstate commerce laws if it aids and abets the shipper or the consignee in evading the laws of the State against the sale of intoxicating liquors. The Court uses this language in the case of
Jaro
v.
Holstein,
73 S. C. 111, 52 S. E. 870:
“The prime object of the federal commerce power is tc protect the freedom of legitimate trade among the States. This great power is acknowledged to be paramount as to all matters not reserved to and inherent in the police powers of the States, but it ought never to be so extended as to become an aid and shield for unlawful traffic. The police law of the State, which is designed to uproot illicit traffic in intoxicating liquors by seizure within the State of liquors intended for such traffic, does not materially or injuriously affect legitimate interstate commerce. * * * Interstate commerce will not protect intoxicating liquors imported into this State for an unlawful purpose, if the importation is in such a way as to make the carrier an aider and abettor in the scheme to violate State laws.”
This proposition is also sustained by the case of
Adams Express Co.
v.
Kentucky,
206 U. S. 129, 27 Sup. Ct. 606, 51 L. Ed. 987, in which the Court says:
“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
^s.y
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.”
In regard to the question of delivery, the Court uses the following language in the case of
Heymann
v.
Railway,
203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, 7 Ann. Cas. 1130:
“Of course, we are not called upon in this case, and do not decide, if goods of the character referred to in the Wilson act, moving in interstate commerce, arrive at the point of destination, and after notice and full opportunity to receive them are designedly left in the hands of the carrier for an unreasonable time, that such conduct on the part of the consignee might not justify, if affirmatively alleged and proven, the holding that goods so dealt with have come under the operation of the Wilson act, because constructively delivered. We say we are not called upon to consider this question, for the reason that no facts are shown by the record justifying passing on such a proposition.”
Subsequently, however, the question was decided in the case of
Kirmeyer
v.
Kansas, 236
U. S. 568, 35 Sup Ct. 419, 59 L. Ed. 721, in which the Court used this language:
“The instant cause arose before passage of the act of Congress approved March 1, 1913 (37 Stat. 699, c. 90), known as the Webb-Kenyon bill; consequently neither its construction nor application is now involved; and what is
said herein, of course, has reference to conditions existing prior to that enactment. Former opinions of this Court preclude further discussion of these propositions: Beer is a recognized article of commerce. The right to send it from one State to another and the act of doing so are interstate commerce, the regulation whereof has been submitted to Congress; and a State law which denies such right or substantially interferes with or hampers the same is in conflict with the Constitution of the United States. Transportation is not complete until delivery to the consignee or the expiration of a reasonable time therefor and prior thereto the provisions of the act of Congress approved August 8, 1890 (26 Stat. 313, c. 728)—the Wilson act—have no application.”
It is within the province of the Court, and indeed, it is its duty, to render such an interpretation of the laws as will best subserve the ends of justice and the protection of the public, m so far as this may be done in accordance with well-established rules of construction. This may be accomplished at one time by a liberal and an another time by a strict interpretation. In construing the Wilson act the Supreme Court of the United States ruled that liquors transported from one State into another did not lose their character as an interstate shipment, and become subject to the laws of the State, until arrival at their destination and delivery to the consignee. Many dealers in liquors took advantage of the opportunity to leave such shipments in the custody of the carrier for as long a time as they saw fit, whether'reasonable or unreasonable, for the purpose of evading the laws of the State against the sale of intoxicating liquors.
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The Circuit Judge having been called to the aid of the Court:
The opinion of the Court
en banc
was delivered by
Mr. Chile Justice Gary.
1
There are numerous exceptions, but it will not be necessary to consider them in detail, as the appellant’s attorneys state that the main question raised by them may thus be formulated: '
“Is an ‘order notify’ shipment of liquor, interstate in character, intended by the party to be notified for unlawful use, subject to seizure under the laws of South Carolina, before actual or constructive delivery to the party for whom, upon certain conditions, it is designed ?”
In the case of
Smith
v.
La Par,
67 S. C. 491, 46 S. E. 332, it is said:
“Liquor purchased in another State and shipped to the purchaser in this State is not contraband, being protected as an article of interstate commerce until it is delivered to the purchaser.
Rhodes
v.
Iowa,
170 U. S. 412 (18 Sup. Ct. 664, 42 L. Ed. 1088);
State
v.
Holleyman,
55 S. C. 244, 31 S. E. 362 (33 S. E. 366, 45 L. R. A. 567). The fact that the purchaser to whom it is consigned is engaged in the illicit sale of liquor, and purchases it for the purpose of resale, can make no difference; the liquor is none the less an article of interstate commerce, and cannot be legally seized until it is delivered to the consignee.”
The carrier, however, cannot claim the protection of the interstate commerce laws if it aids and abets the shipper or the consignee in evading the laws of the State against the sale of intoxicating liquors. The Court uses this language in the case of
Jaro
v.
Holstein,
73 S. C. 111, 52 S. E. 870:
“The prime object of the federal commerce power is tc protect the freedom of legitimate trade among the States. This great power is acknowledged to be paramount as to all matters not reserved to and inherent in the police powers of the States, but it ought never to be so extended as to become an aid and shield for unlawful traffic. The police law of the State, which is designed to uproot illicit traffic in intoxicating liquors by seizure within the State of liquors intended for such traffic, does not materially or injuriously affect legitimate interstate commerce. * * * Interstate commerce will not protect intoxicating liquors imported into this State for an unlawful purpose, if the importation is in such a way as to make the carrier an aider and abettor in the scheme to violate State laws.”
This proposition is also sustained by the case of
Adams Express Co.
v.
Kentucky,
206 U. S. 129, 27 Sup. Ct. 606, 51 L. Ed. 987, in which the Court says:
“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
^s.y
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.”
In regard to the question of delivery, the Court uses the following language in the case of
Heymann
v.
Railway,
203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, 7 Ann. Cas. 1130:
“Of course, we are not called upon in this case, and do not decide, if goods of the character referred to in the Wilson act, moving in interstate commerce, arrive at the point of destination, and after notice and full opportunity to receive them are designedly left in the hands of the carrier for an unreasonable time, that such conduct on the part of the consignee might not justify, if affirmatively alleged and proven, the holding that goods so dealt with have come under the operation of the Wilson act, because constructively delivered. We say we are not called upon to consider this question, for the reason that no facts are shown by the record justifying passing on such a proposition.”
Subsequently, however, the question was decided in the case of
Kirmeyer
v.
Kansas, 236
U. S. 568, 35 Sup Ct. 419, 59 L. Ed. 721, in which the Court used this language:
“The instant cause arose before passage of the act of Congress approved March 1, 1913 (37 Stat. 699, c. 90), known as the Webb-Kenyon bill; consequently neither its construction nor application is now involved; and what is
said herein, of course, has reference to conditions existing prior to that enactment. Former opinions of this Court preclude further discussion of these propositions: Beer is a recognized article of commerce. The right to send it from one State to another and the act of doing so are interstate commerce, the regulation whereof has been submitted to Congress; and a State law which denies such right or substantially interferes with or hampers the same is in conflict with the Constitution of the United States. Transportation is not complete until delivery to the consignee or the expiration of a reasonable time therefor and prior thereto the provisions of the act of Congress approved August 8, 1890 (26 Stat. 313, c. 728)—the Wilson act—have no application.”
It is within the province of the Court, and indeed, it is its duty, to render such an interpretation of the laws as will best subserve the ends of justice and the protection of the public, m so far as this may be done in accordance with well-established rules of construction. This may be accomplished at one time by a liberal and an another time by a strict interpretation. In construing the Wilson act the Supreme Court of the United States ruled that liquors transported from one State into another did not lose their character as an interstate shipment, and become subject to the laws of the State, until arrival at their destination and delivery to the consignee. Many dealers in liquors took advantage of the opportunity to leave such shipments in the custody of the carrier for as long a time as they saw fit, whether'reasonable or unreasonable, for the purpose of evading the laws of the State against the sale of intoxicating liquors. The Federal Supreme Court, recognizing that it was injurious to the morals, the health and welfare of the public for liquors to remain in the hands of the carrier for a length of time, limited only by the action of the dealer in supplying his customers, interpreted the word “delivery” to include not only an actual transfer of the liquors to the consignee, but likewise a constructive delivery, from the fact that they had
remained in the custody of the carrier an unreasonable time after arrival at their destination. The proposition for which the appellant contends would defeat this construction. The liquors were consigned to the shipper, but it was never contemplated that they were to be delivered to him, but it was the expectation of the parties that the one who was to be notified would become the consignee. The consignor conferred upon him alone the power and authority of determining when the liquors should be delivered. He was the agent of the shipper to the extent of deciding when the liquors were to be removed, in so far as their delivery within a reasonable time was involved. The ruling that liquors were subject to the laws of the State, after they had remained a reasonable time in the hands of the carrier, was based upon public policy, which is paramount to the rights of private parties.
McConnell
v.
Kitchens,
20 S. C. 430, 47 Am. Rep. 845;
Lanahan & Sons
v.
Bailey,
53 S. C. 489, 31 S. E. 332, 42 L. R. A. 297, 69 Am. St. Rep. 884.
It would be against public policy for any one, even the carrier, to enter into a contract that the liquors should not be subject to the laws of the State after arrival at their destination and the expiration of a reasonable time thereafter, as such a contract would be inconsistent with the ruling adopted by the Federal Supreme Court hereinbefore mentionéd. The consignors are presumed to know the law, and that it is against public policy for liquors to.remain in the custody of the carrier after a reasonable time for their removal. The important fact to be determine in all these cases is whether the liquors were allowed to remain an unreasonable length of time, and not the fact as to which of the parties, as between themselves, was responsible for the failure to remove them. The question under consideration is not to be determined by principles regulating the relations between the consignor and consignee, but by the laws fixing the time within which the liquors shall become subject
to the laws of the State. The exceptions raising this question are overruled.
2
There are two other exceptions, but they cannot be sustained, for the reason that, if there was error, it was not prejudicial; as there is no reasonable ground for supposing that the result would have been different if the error had not been committed.
Affirmed.
Mr. Justice Gage and Circuit Judges Moore, Sease, Rice, Bowman, Gary, Wilson, Peurieoy and Smith concur in the opinion announced by the ChiEE Justice.