State v. Intoxicating Liquors

Emery, C. J.

Ten cases containing one hundred and twenty quart bottles of whiskey consigned to J. Hume, were seized at the depot of the Grand Trunk Railway Company in Lewiston, and were duly libelled and are claimed by that railroad company.

The first question is whether the whiskey was intended for unlawful sale. Unexplained, we think the quantity is sufficient evidence of such intention, and no explanation is offered.

The next question is whether at the time of seizure the whiskey was so far undelivered and in the custody of the railroad company *140 as an interstate common carrier as to be within the protection of the commerce clause of the Federal Constitution. Twenty-two cases were shipped from New York and arrived at Lewiston, January 1, 1909. On January 8, 1909, one of the drivers of Hoyt’s Express Co. presented the bill of lading and receipted for all the whiskey and took away twelve cases, leaving ten cases in the freight shed of the railroad company where they remained for six more days when they were seized by the officer.

The question is a federal one but we do not find the federal courts to have held that intoxicating liquors are under federal protection so long as they remain upon the premises of the interstate carrier. In Heyman v. Southern Railway Company, 203 U. S. 270 -276, the court was careful to say it did not decide that the federal protection would not be lost where the consignee, after notice, designedly left the liquors in the hands of the carrier for an unreasonable time. The locality of the liquors is not made the test. All that the federal courts seem to require is that the liquors shall once have been turned over to and accepted by the consignee. This may occur without any removal of the liquors themselves from the freight sheds of the carrier, and we think it did occur in this case. In Knowles v. Atlantic & St. L. R. R. Co., 38 Maine, 55, the merchandise had not even been unloaded from the cars, but the consignee was notified of its arrival and that it was at his risk. He acknowledged he had received it in good order and requested it be allowed to remain on the cars for a time. Held that the transit was ended and the liability was at an end. In Whitney Co. v. Richmond & Danville R. R. Co., (So. Carolina) 17 S. E. Rep. 147 , cotton had been transported by the railroad company and the car containing it had been placed upon a side track for the convenience of the consignee, who delivered to the railroad company the way bill as a receipt, and removed part of the cotton. Held that all the cotton had been delivered. In C. D. Kenny Co. v. Atlanta & W. P. R. R. Co., 122 Ga. 365 ( 50 S. E. Rep. 132 ) the railroad company notified the consignee of the arrival of the merchandise. Before it was unloaded from the car, the consignee’s drayman went with the freight clerk to the car and signed a receipt *141 for all the merchandise, as checked by the clerk. He then hauled some of the merchandise away that day but left some in the car. Held that all the merchandise had been completely delivered at the time of signing the receipt. In Vaughan v. N. Y. N. H. & H. R. R. Co., 27 R. I. 235, two cars containing oats, bran and gluten, consigned to the plaintiff, arrived and were placed on a side track near the plaintiff’s warehouse. He was duly notified of the arrival, and with the permission of the company’s agent opened the cars, examined the contents and removed part of them, leaving the remainder in the cars where it was consumed by fire early the next morning. Held that all the consignment had been delivered. The court said: "But under the testimony wé do not find that the defendant (the R. R. Co.), was even a warehouseman. The property had been delivered on the spur track to the plaintiff, he had accepted it, sold and removed some of it, and had assumed full dominion over it, and the mere fact that it still remained in the defendant’s cars was a mere matter of convenience to the plaintiff, but did not impose any liability on the defendant.”

The facts in the case at bar are manifestly different from those in the cases State v. Intox. Liquors, 102 Maine, 385, and 104 Maine, 463, and our decision here is not in conflict with those cases rightly read.

Of course the final determination of this question is with the Supreme Court of the United States, but not finding any decision of that court to the contrary upon facts like those in this case, we think for the reasons above given we should hold that the transit was ended, that the liquors had come into the possession of the consignee at the time of the seizure and were then subject to seizure and forfeiture under the State law. We have therefore no occasion to consider questions raised under the "Pure Food Act” of Congress. Having reached the consignee and being intended for unlawful sale, they must be declared forfeited.

Judgment of forfeiture against the liquors.

Judgment against the claimant for costs of libellant.

Liquors to be destroyed.