State v. Intoxicating Liquors , 102 Me. 206 ( 1906 )

Savage, J.

This case of a libel for the condemnation of intoxicating liquors seized, and alleged to be intended for unlawful sale in this State, comes before the Law Court on report. The liquors in question were shipped by Reuben Ring & Co., of Boston, Massachusetts, from Boston to Lewiston, Maine, by continuous way bill over the Boston & Maine Railroad and the Grand Trunk Railway of Canada. The consignee named in the way bill and upon the packages was “John Cram” a name which the State claims is fictitious. In the complaint it is alleged that the liquors “ were unlawfully kept and deposited by some person to your complainant unknown, in a car on a side track in the yard of the Grand Trunk Nail way Company, situated on the north side of Beech Street in said Lewiston.” The claimant is a common carrier, and claims a return of the liquors on the ground that when seized they were in its possession as a common carrier and in transit, under the continuous way bill, and were still protected from seizure by the interstate commerce clause of the federal constitution.

From the evidence we find the following additional facts. The car in which the liquors were being transported by the claimant company arrived in its Lewiston yard at about ten minutes before seven in the morning of December 15, 1905. Subsequently it was shifted from track to track in the yard, and was finally left upon the “team track,” so called, about one hour after its arrival. In about ten minutes thereafter, the liquors were seized, and held until a warrant was procured under the statute, N. S., chap. 29, sect. 48, and afterwards were properly libelled. The team track was about twenty rods from the claimant’s freight station, and was commonly used for the purpose of unloading freight directly from the cars onto teams. In the ordinary course of business, these liquors, if called for by the consignee or owner within two or three days, would have been unloaded from the car onto a team. But if not so taken within that time, they would have been taken in the car to the freight house and there unloaded by the claimant. Between the time of the arrival of the car at the team track and the seizure of the liquors by the officers, the car, which was sealed, had been opened by the claimant’s servants, and other merchandise which came in the same car Avas being taken out of it, but the liquors had not been removed or disturbed by anyone. There is little doubt that the name of the consignee as given was fictitious.

Under these circumstances, the State claims that carriage had ceased, that interstate transportation had ended, and with it the duties and responsibilities of the claimant as a carrier, and hence that the liquors Avere then subject to the police poAver of the State, exercised under the provisions of the prohibitory liquor law. It is claimed that the car had become a Avarehouse, and that the situation was in no essential respect different from Avhat it Avould have been if the liquors had been actually unloaded into the claimant’s freight house. The State relies upon State v. Intoxicating Liquors, 95 Maine, 140, and State v. Intoxicating Liquors, 96 Maine, 415.

In the first case cited, the liquors which were consigned to the shipper’s own order, arrived at the place of destination and were transferred by the carrier from the car to its freight house about nine o’clock in the forenoon of a certain day, and at about four o’clock in the afternoon of the following day they were seized by the officer, while in the freight house. There had been no delivery of the liquors, and no notice had been given to anyone of their arrival. The question decided was whether the liquors at the time of their seizure had arrived within the State, so as to be subject to its police powers, within the meaning of the Wilson Act, passed by Congress August 8, 1890, and within the construction placed upon that act by the Supreme Court of the United States in Rhodes v. Iowa, 170 U. S. 412. And the court decided that the transportation had been completed, that the liquors had arrived at their place of destination, and that storage had commenced. The liquors were condemned.

In its discussion, the court said,— “And the question is not, whether or not the liability of the railroad company for a loss continued as a carrier up to the time of the seizure, or had become that of a warehouse man. It is simply whether these liquors, wdieu the actual transportation had been entirely completed, and when they had not only arrived at the place of "their destination, but had been moved by the employees of the railroad company from the car to the company’s freight house, there to await the order of the shipper, had arrived in the State, within the meaning of the Wilson Act, so as to be subject to our laws.” And as already stated, the court answered the question in the affirmative, notwithstanding certain expressions in the opinion in Rhodes v. Iowa, which were believed to be unnecessary to the decision in that case, and therefore properly to be regarded as dicta. The court however indicated its duty and willingness to follow the determination of the federal Supreme Court, whenever the mooted point should actually be decided by it.

The claimant here contends that that time has now arrived, and claims that the point has been decided, contrary to our former decision, by the federal court in American Express Company v. Iowa, 196 U. S. 133. In that case, the duties, as to delivery, of express companies, as carrier's, was considered. The difference in the usages of railroad companies and of express companies as to the ultimate disposition by them of freight is in some respect very marked. These usages are so common and universal that they enter into and form a part of the carrier’s contract, and the court may take judicial knowledge of them. It is open to argument, at least, whether, in view of the difference in the contracts of these two different kinds of carriers, the case of American Express Company v. Iowa can be considered as deciding the question now before us.

But we do not find it necessary to express our opinion upon this question, for we think the case now in hand must be distinguished from State v. Intoxicating Liquors, 95 Maine, 140. In this case we think the transportation contemplated and implied by the carrier’s contract of carriage had not ended. In the absence of evidence showing a special arrangement otherwise, a railroad carrier’s contract of carriage contemplates that the freight shall be transported to the carrier’s freight house, and there removed from the car. So much is implied. Sucli is the effect, of general usage. It is the duty of the carrier so to transport the goods. It owes this duty both to the shipper and to the consignee, and for breach of this duty it may be responsible to either. The freight house is the place contemplated where the consignee is to find the goods and where the shipper is to look for them in case the consignee does not take them. No doubt, in numberless instances, freight is unloaded directly from oars onto teams, without being put into a freight house. But this is done for convenience, by special arrangement, or after notice to shipper or consignee, assented to. If the goods are not taken by the consignee from the car, or if he does not assent to so doing, they must be taken to the freight house, unless it is impracticable by reason of bulk or otherwise.

In this case, there is no evidence that the carrier’s duty was modified or waived by contract or otherwise. When it took the liquors it was bound to transport them to their destination at its freight house. It was not enough to place them upon a side track, where the consignee could come and take them if he chose to do so. Not even if the side track was ordinarily used by it for the purpose of enabling consignees, who chose to do so, to remove their goods directly from the cars, nor even if such was the purpose in this particular case. It was not enough that the owner might call for them there. It was only conjectural whether he would or not. The consignee or owner might take the liquors there, or he might not. The case does not show that he was under obligations to do so, or that he had consented to do so. If he had done so, the carrier’s duty of transportation would have ended. But if he had not done so, it would still have been the duty of the carrier to complete the trailspdrtation, by taking the liquors to its freight house, to be removed from the car. So long as the transportation was incomplete, the liquors were not subject, by virtue of the Wilson Act, to seizure under the police power of the state.

Judgment for the claimant. Order for a.return of the liquors to issue.