Commonwealth v. King

A miller in New Jersey having contracted to deliver a certain quantity of flour in New York, sent it to A. a carrier in Easton in Pennsylvania to be forwarded to New York. The Morris Canal being obstructed by the ice, a,portion of the flour was sent in a canal boat by A. to B. another carrier in Philadelphia, to be forwarded by him by way of the Delaware and Raritan Canal to New York. On the arrival of the boat at Philadelphia, the flour was landed on the wharf of B. and shortly afterwards put on board another vessel belonging to B.; being a packet boat plying on the canal and between the two cities. The flour was in barrels which did not bear the mark or brand of the state of New Jersey; and no offer to submit the flour to inspection was made. Held, under the act of 14th April, 1835, (1) that this flour was liable to inspection; (2) that there was a sufficient “ offer to transport” it out of the state, without inspection; consequently that the inspector had a right to seize it as forfeited; and that the circumstance of B. being ignorant of the fact of non-inspectión was not material.

This was an indictment against Francis King, Alfred Hayden, George M‘Henry and John OfRourke, which had been found in the Mayor’s Court for the City of Philadelphia, at December Sessions 1835, and removed to this Court by certiorari. The indictment contained three counts : 1. For a riotous assault upon one of the deputy-inspectors of flour for the city of Philadelphia, while in the lawful execution of his official duty. 2. For an assault upon him while .in the lawful execution of such duty. 3. For a common assault. At the trial, which took place at a Court of Nisi Prius held at Philadelphia on the 12th of March, 1836, before the Chief Justice, the following facts appeared. In the month of November, 1835, John Qniek & Son, millers, residing at the town of Belvidere in the state of New Jersey, contracted with Messrs. Nevins & Son of New York, to deliver to them 600 barrels of flour in New York. The flour was accordingly sent to Rodenbaugh & Co. carriers at Easton in Pennsylvania, branded for the New York market according to the requisitions of the law of that state. Rodenbaugh & Co. sent 61 barrels of this flour in their boat, by the Delaware Canal, to Messrs. C. & F. King in Philadelphia, to be forwarded in a line of packets, which the latter were engaged in running from Philadelphia to New York through the Delaware and Raritan Canal. The flour arrived at the wharf in Philadelphia on the 25th of November, 1835, when it wasiplaced on board one of the packets of Messrs. King. In the afternoon of that day the deputy inspector of flour, having received information of the facts, proceeded to the boat and requested them to discharge the flour for inspection. He was told that there was none on board; but having ascertained that the fact was otherwise, he placed two watchmen on board. One of the firm of Messrs. King then said, that it should be landed the next morning. On the next day the inspector attempted to seize the flour, on the ground that it was forfeited under the inspection laws. The defendant King forbade him to remove it, and ordered his labourers to roll the flour into the store of C. & F. King. The assault then took place, which was the subject of the indictment. The defence was, that the flour was not liable to inspection; and, that if it had been liable to inspection, it would not, under the circumstances, have been forfeited. That this being the case, the inspectors had no right to seize it, and were, therefore, the aggressors; and that the IaW justified the interference of Mr. King to protect his servant, and justified the defendants in repelling force by force under the circumstances. The defendants’ counsel asked the Court to charge the jury, that— “ 1. If the flour in question was in transitu from New Jersey to New York, it was not liable to inspection; 2. If the flour came from the mill of Quick &, Son to Easton in execution of the contract of 7th Nov. 1835, and was at the time in question under carriage to New York in pursuance of that contract, it was not liable to inspection. 3. If the jury believe Quick and Rodenbaugh, the flour was in transitu, while at Philadelphia. 4. The mere landing of it on a wharf in Philadelphia for the purpose of transhipment in the course of its carriage to New York aforesaid, does not render it liable to inspection. 5. That the removal of the flour from one boat to another, in the transitas from New Jersey to New York, though in the port of Philadelphia, does not subject the flour to inspection. .6. That the inspectors had no right to inspect this flour, if they knew its origin to be in New Jersey, and its immediate destination to be New York. 7. That the limits of the transit for the above purposes are to be fixed by the two termini, which were New, Jersey and New York. 8. That the law of the case is in these respects the same, if the termini were Easton and New York. 9. That if there were no right to inspect, there was under the circumstances of the case, no forfeiture. 10. That there wa,s no forfeiture, if the lading of the Planet was incomplete, and the shipment or intended shipment, so far as measures had then been taken for making it, was without the participation of any but unauthorized servants, and without the knowledge of their employers at the time of its being discovered by the officers.” The Chief Justice charged the jury in substance as follows:— “ The material questions are — was the flour subject to inspection? Was it forfeited by evasion? Were the officers resisted? To find any one of these for the defendants is to acquit them. 1st. They contend, that the article was in a course of transport from an adjoining state through the port of Philadelphia to a market; consequently not within the intent of the inspection laws. That if within the intent, they (the laws) are to be controlled by the constitution of the United States. Flour passing through a state, along the common highway of the states, is not subject to inspection; a vessel may pass from a point on the Delaware above the state to a point below it; may pass without being challenged, though anchored in the port or made fast to the wharf. But there must be no transhipment to a Philadelphia vessel, or apy vessel receiving a cargo in port — that would break continuity, and make the beginning of a new voyage- The owner cannot use the port for exportation, and not comply with the regulations of the port. Was this an exportation by a Philadelphia forwarding house, or w.as it a continuation of the voyage from New Jersey or from Easton ? Continuity may be one thing for charging carriers for loss, and another for charging the article with local regulations. Flour is certainly within the inspection laws. The object of these is the protection of our local character in foreign markets. This is not accomplished by permitting the article to depart without brand, whether it be of domestic or extra-territorial origin. The foreign dealer knows nothing of acquired character from temporary situs — he judges from the clearance of the ship. The case was the same in principle as if the shipment were to European ports. As to the constitutionality of the law, the right of the states to pass inspection laws has been recognised. These are strictly municipal, not regulations of foreign commerce. To regulate commerce between state and state was given to Congress to prevent oppression, by ruinous burthens of the commerce of a neighbour. But burthens are not ruinous or oppressive when no greater than those imposed on the inhabitants of the same state. An act in the guise of an inspection law might be in substance a regulation to burthen foreign commerce, and then it would be void. Such is not the character of our inspection laws. 2d. Being liable to inspection, was the flour forfeited ? Did any one in the words of the law ‘ offer to transport’ it ? An article may be forfeited by acts of those who do not own it. The owner is liable for all acts done in the course of the agency, to which he commits It — his remedy is against the agent. The fact of the knowledge of Messrs. King is immaterial — they were bound to know every thing done in the course of their business. Was the flour put aboard by any one with intent to ship it ? The commonwealth has nothing to do with the owner or agents, but only with the article. Forfeiture does not make these criminally responsible — the penalty is attached to the article, and the agent is civilly responsible for misconduct. The offence is complete by the first step taken towards unlawful purpose, even by an offer to execute. 3d. Was there a riot ? Any unlawful act done with violence by three or more, is a riot. To oppose officers in the execution of their duty, is unlawful. Were the inspectors in execution of their duty? The statute dispenses with a warrant of seizure — such dispensation is not unconstitutional. It is not pretended, that the officers were not opposed — the flour was actually rescued. Wanton violence by ■officers, if any could be pretended, is not to be set against violence offered to them — the cases are separately punishable. These are not the days for presumptions unfavourable to public functionaries— the tendency of the times is not towards official oppression, but towards contempt of authority. When the ministers of the law are incompetent to execute it, freedom is gone, and the weak are the slaves of the strong. Our duty is to sustain the officers while we •can.” The jury found the defendants guilty. A motion for a new trial having been made, the questions of law now came on to be argued. The case turns upon the true construction of the act of 15th of April, 1835, entitled, “ An act relating to inspections,” by which the previous laws were consolidated and revised. 1. Was this flour forfeited, supposing it to be within the inspection laws ? 2. Was it liable to inspection? 1st. The 32d section of the act declares, that “ if any person shall offer to transport any such flour or meal out of this state without being proved or branded in the manner required. by the act, the same shall be forfeited and sold by the inspectors,” &c. The 43d section provides for the entry in the manifest of the number of barrels, &c. and declares, that the inspector shall have free access to such manifests. This section shows when the act of exportation is complete. In a question of this kind, the scienter is of the first importance. Now there is no scienter at all, proved on the part of the principals. The knowledge seems to have been confined to the labourers; by whose acts they could not be bound. In England the rule now is to interpret the revenue and navigation laws favourably for the subject; and to lean against forfeitures, if the law is obscurely worded. Hubbard v. Johnson, (3 Taunt. 220, 1.) So in the United States courts. U. States v. Goodin, (12 Wheat. 477.) ' Upon the opposite construction a person transporting flour from Florida to Maine, ought to be acquainted with the law of every state. There is no case throughout the act of 1835, which does not suppose a criminal intent. Unless knowledge be affirmatively shown by the prosecution, a forfeiture cannot take place. The Betty, (1 Rob. Adm. Rep. 220,226,7.) Sturges v. Maitland, (1 Anthon’s JV. P. R. 153, 6.) Idle v. Vanhecker, (Bunbury, 230.) Mitchell v. Torrup, (Parker, 227, 238.) The Chief Justice charged the jury as if the offence consisted in an offer to lade, whereas the act .speaks of an offer to transport; the difference being material. The Caroline, (7 Cranch, 496, 501.) Moodie v. The Alfred, (3 Dali. 307.) The Active, (7 Cranch, 106.) The Emily Sp Catharine, (9 Wheat. 385, &c.) 2d. The flour was not liable' to inspection. The act of 1835, intended to give greater facilities to the passage of the produce of other states, not to throw obstructions in the way. The question is, was this flour “ designed for exportation” from Philadelphia, and it is plain from the evidence, that it was not. It was merely in transitu from Belvidere to New York. It certainly had no situs in Philadelphia, and it follows, that it was in transitu. It was in the hands of a carrier at the time, and would not have been brought to Philadelphia at all, if the ice had not prevented the ordinary passage through the Morris Canal. Belvidere and New York then were thé termini. Hyde v. The Navigation Co. (5 Term Rep. 397.) The carriage was not divisible. Could not this flour have been stopped in transitu in case of the failure of the consignees, even after it had left Philadelphia 1 Story’s Abbott, 374. 3 East, 397, note. Gibbons v. Ogden, (9 Wheat. 1.) Under the revenue laws, Philadelphia would be a starting place, which gives a situs; but it is not so under the laws relating to the coasting trade. There is nothing in a vessel of this kind to indicate, that she came from Philadelphia. (Acts of Congress of 1793, 1819 and 1822.) It is surely not an act of exportation to take a wagon or boat at Philadelphia to go to another state. There can be no injury to the trade of this city from the passage of flour under circumstances like the present. Pennsylvania is not responsible, unless her brand is upon it. It was to be inspected in New York; and. to brand it with the name of New Jersey, would be useless, and could not be within the contemplation of the legislature. Actual exportation de novo was what was meant; and the mere touching at Philadelphia, although there was a reshipment, could not be so considered. In Hancock v. Sturges, (13 Johns. Rep. 331,) it was held, that flour situated like the present, was not liable to inspection under the laws of that state. (Laws of N. York; Act of 1813.) In the case of The Appollon, (9 Wheat. 369,) the Court say, “ the question is, whether a mere transit through the waters of the St. Mary , for the purpose of proceeding to the Spanish territory, is to be deemed an arrival within the limits of the United States, from a foreign port within the sense of the 29th section of the act. We are decidedly of opinion, that it cannot be so considered.” 3d. A grave constitutional question arises, if it can be shown, that the intent of the act was to subject this flour to inspection. The ppwer to regulate commerce among the several states is given in express terms to Congress, (Art. 1, sect. viii. § 3,) and the states are ex/pressly prohibited from laying duties on imports or exports, 'except such as are absolutely necessary for executing its inspection laws, j The power of Congress to regulate commerce is necessarily exclu/sive. Gibbons v. Ogden, (9 Wheat. 198.) Steam Boat Co. v. Livi/ngston, (3 Cowen, 735.) 2 Story’s Comm. 512. Brown v. The State of Maryland, (12 Wheat. 419.) In the last cited case, C. J. Marshall asks, “ If'the states may tax alb persons and property found orjl their territory, what shall restrain them from taxing goods ill their transit through the state from one port to another for the purpose of re-exportation'?” (12 Wheat. 449.) The exception in ijfhe constitution of inspection laws has an obvious reference to duties ¡on exports, not upon articles which are properly said to be transported from one state to another, and so it appears to have been [understood by C. J. Marshall in 12 Wheat. 438, and in Gibbons v. / Ogden, (9 Wheat. 203.) 2 Story’s Comm. 472, 3. If the article in Vquestion could constitutionally be made the subject of a duty under the inspection laws, so might tobacco if found on board of a steamboat passing up the Delaware, and touching at a wharf in the course ■of communication with New York. In the course of the argument, various acts of assembly relating to inspections, passed previously to the act of 1835, were cited. 1. The right of the state to pass inspection laws, is an inherent right. It had been exercised long before the adoption of the constitution, and by that instrument is recognized as a reserved right. Gibbons v. Ogden, (9 Wheat. 203.) The constitution has provided for exportation and importation. It has left the subject of transportation as it was, viz. within the power of the several states. In Shuster v. Ash, (11 Serg. ¿y R. 90,) C. J. Tilghman asserted this ■right, in answer to a suggestion similar to that which had been made in.this case. The only question under the constitution is, whether ■the duty laid by the state is more than what is necessary for the execution of the inspection laws. In this case the duty is a minimum one, being only one cent per barrel. 2. The general rule laid down by the act of 1835, is, that “all flour” designed for exportation is liable to inspection. The only limit to this comprehensive language is to be found in the 5th section, which authorises flour of other states, duly branded, to pass without inspection. The rule is the same with respect to all the other articles. The Legislature thought fit to throw open the canals for the passage of flour, &c. from other states, with , a proviso, which it had a right to impose, that it should bear the mark of the state of its origin, that it might not be confounded with our own manufacture. Is this case then within the meaning and intent of the law l The evidence shows that the flour was landed] on the wharf at Philadelphia, and afterwards put on board of another vessel for exportation. This vessel was well known to comip from Philadelphia, and her cargo would pass for Pennsylvania flomr, unless branded according to law. The distinction between exportation to another state and to a foreign port, has no solidity. It w;as adverted to and denied by C. J. Tilghman, in Shuster v. Ash. \ The act makes no exception of flour in transitu, as to the forfeiture. ‘The act certainly did not intend to require that the inspector should wait until the exportation had actually táken place, since it woqdd be impossible in that case to apply the penalty in rem, as was obviously designed. When an article is taken from a wharf and pmt into a boat destined for another place, this is certainly a suflicienVt “ offer to transport.” It was immaterial whether the defendant, knew of the facts and design or otherwise. The rule is, that if thf law does not require the scienter, it is unimportant. In Mitchell v. Torrup, (Parker, 227,) where the violation of the law was committed by the mariners of a vessel without the privity of the master o> owners, it was held that the vessel was nevertheless forfeited. Cross: v. The United States, (Gallison’s Rep. 28.) The case of Hancock v. Sturges, does not apply, because the New York law did not require that the produce of another state should be branded as such. This case differs from all that may be supposed to have been within the view of the Legislature, or that have been cited on the other side. It never was the intention of the miller to send this flour to Philadelphia. It was forced here by stress of weather on its passage from New Jersey to New York. It never was in Philadelphia in contemplation of law. The case is like that of a slave brought from a southern state by the owner in transitu. The constitution never contemplated the application of the inspection laws to articles on board of a vessel, which has merely touched at a wharf or transferred its lading to another vessel. There is a clear distinction to be found in the act between lading and transporting. The case of Hancock v. Sturges, is decisive and in point in all respects. The reasoning of the Judge applies with equal force here.