State v. Kirmeyer

SYLLABUS BY THE COURT. 1. Basic Pacts—Conflicting Conclusions Deduced Therefrom— Error. A finding consisting only of conclusions from basic facts found in detail can not be upheld where it is in conflict with them. The basic facts must prevail over the conclusion. 2. Intoxicating Liquors — Interstate Comm,erce — Question of Fact. Where the commerce clause of the federal consititution is invoked as a protection to traffic in intoxicating liquor, the courts are not precluded from an inquiry into methods and practices to determine whether the transactions involved constitute legitimate interstate commerce; or are colorable merely and intended to evade and defeat the just operation of the constitution and laws of this state. 3. “Shifts and Devices”—Crossing State Line. A citizen of this state whose business is prohibited here can not, under the guise of moving his stock in trade across the state line and other shifts or devices to evade the statutes of the state continue the prohibited business here and be immune from the penalties of our law.

Appeal from Leavenworth district court. STATEMENT. This appeal is from a judgment for the defendant in an action prosecuted by the attorney general and county attorney to abate and enjoin a public nuisance. The petition charges a nuisance committed by the defendant in the open and persistent violation of the prohibitory liquor laws. The petition contains the same averments as those held to be sufficient in The State v. Rabinoiuitz, 85 Kan. 841, 118 Pac. 1040, and also the following: “Plaintiff further alleges that for several months prior to the' institution of this action the said defendant has kept and maintained, and does still keep and maintain, in the city and county of Leavenworth, certain warehouses or storerooms for the purpose of selling and storing intoxicating liquors therein, and for the purpose of storing empty cases, bottles and barrels, and for the purpose of the stabling of wagons loaded with intoxicating liquors, and for the purpose of stabling teams and caring for the same, used in the transportation of intoxicating liquors from said town of Stillings, in the county of Platte, in the state of Missouri, and your petitioners are informed and believe that the said defendant so keeps and maintains said warehouses or storeroom on premises known as No. 117 and No. 117% Delaware street, in the city of Leavenworth, Kansas.” The prayer is: “That he (the defendant) be enjoined from conducting said unlawful business; that he be enjoined from maintaining, using and employing said wagons, vehicles, conveyances,. horses, mules, telephones and any other property in the said unlawful manner herein alleged; that upon the final determination of this action said injunction be made permanent; that said wagons, vehicles, conveyances, horses, mules, telephones and other property used in said unlawful business be declared common nuisances and that the same be abated.” Findings of fact were made too lengthy for insertion here. The material facts found and stated by the district court are as follows: The defendant is a resident of Leavenworth and a dealer in beer, in which business he has been engaged for many years. Before the year 1907 his place of business, warehouse and barn were in the city of Leavenworth. About that date he moved his place of business to Stillings, Mo., one and one-. half miles from Leavenworth, where he has ever since kept an office and warehouse, where he receives beer in car load lots. He pays a revenue tax to the federal government, a merchant’s tax in Missouri and taxes upon his property located in that state. He has no license to sell liquor in this state. His office in Stillings is connected with the telephone exchange in Leavenworth. He receives orders there by mail and telephones for beer, which, if accepted, he fills by tagging the cases, kegs or casks with the names of the persons giving the orders, and deliveries are then made in the original packages by his own teams and wagons or by deliverymen. About 85 per cent of the orders from persons residing in Leavenworth are by telephone, and his trade in that city amounts to about $500 per month. Orders from persons in other places are filled by tagging and hauling the beer to the railroad depot in Leavenworth, and bills of lading are given from that point. There is a freight depot, but no station agent, at Stillings, and no post office. Some beer is received by him at the station in Leavenworth and hauled therefrom by his teams to the Stillings warehouse. The defendant’s drivers do not solicit orders or make collections. The defendant makes collections, usually in person, or by collector, and some payments are made by mail. He does a family trade in Leavenworth, selling beer only for private use. When he moved his place of business to Missouri he moved his teams and wagons theretofore used in the business from another place in the city to 117 Delaware street, Leavenworth, and installed telephones there, numbered 313, which he still maintains. Occasionally orders for beer are given oyer such telephones to No. 117 Delaware street, but are answered by requesting that the place of business at Stillings be called up. Mail orders are also occasionally addressed to the defendant at Leavenworth, but are either taken or sent by him to his place of business at Stillings before being opened. Ever since he became engaged in the business the defendant has carried advertisements in two newspapers in Leavenworth, reading: “Michael Kirmeyer Stillings, Missouri. ROCHESTER BEER Family Trade Especially. Phones 313.” The telephone numbers were- not changed through -oversight when he changed his place of business to Missouri. In making deliveries from the Stilljings warehouse and at the Leavenworth depot his wagons use the Missouri river bridge and the streets and alleys of the city of Leavenworth. The teams and wagons .stand upon these streets while deliveries of beer ordered and tagged as before stated are being made. The following finding was also made: “The defendant’s residence in the city of Leavenworth, Kansas, and the keeping by him of his teams and wagons used by him in his said business, in said city, is not intended as a subterfuge or a shift or device on his part to circumvent or defeat the prohibitory laws of the state of Kansas. .Neither is the fact that mail is occasionally addressed to him at Leavenworth, Kansas, instead of Stillings, 'Missouri, nor the fact thai he maintains telephones at his stables in the city of Leavenworth, Kansas, and advertises in said papers above mentioned, intended by him as a shift, and none of these circumstances actually tend to circumvent or defeat the laws of the state of Kansas.” The testimony of the defendant further shows that he has resided in Leavenworth thirty years, and has been in the liquor business “off and on” since he was old enough. About four or five years before the trial, when receivers in cases pending in this court against several brewing companies came to Leavenworth, he “moved across” to Stillings. Stillings contains one store, a round-house and ten or fifteen residences and eight or ten beer warehouses. Occasionally beer is shipped to the defendant over a railroad, consigned to Leavenworth. This beer is hauled in defendant’s wagons .from the depot in Leavenworth to his warehouse in Stillings. Deliveries by wagon are only made in Leavenworth.. Empties from the Leavenworth trade are all gathered up by the- drivers, hauled to and shipped from the Leavenworth depot to a brewery in Kansas City, Mo., without being taken to Stillings. Sometimes empties are kept in the barn at No. 117 Delaware street over night where the wagons and teams are kept for making deliveries. To further indicate the nature of the defendant’s business we quote from his testimony: “Before I moved across I received my liquors here in Leavenworth. I have been receiving my liquors at Stillings since I moved anross. There is a freight depot at Stillings, but no agent there. I am a dealer in a beer known as Rochester beer. It comes from Kansas City, Mo. That is the only beer I handle. Nearly all of it comes to Stillings in carload lots. I handle nothing but beer. The beer comes to me in regular beer ■cases, barrels and kegs. Some of' the cars come to me over the Burlington and some over the Chicago Great Western. Some of it comes over the Missouri Pacific. Where it comes over the Missouri Pacific it is unloaded at the freight depot in Leavenworth and I haul it across the river in my own wagons. I do not deliver any from the Missouri Pacific depot in Leavenworth. When I get an order for beer from Oskaloosa, Topeka and other points in Kansas I bring the beer over to the freight depots 'in Leavenworth, Kan., in my own wagons and ship it out from there. I do this because there is no freight agent at Stillings, Mo. Leavenworth is the only place to load it. Ever since I have been doing business at Stillings I have had stables and a warehouse at No 117 and 117% Delaware street, in Leavenworth, Kan. I keep my horses and wagons there. I have quite a few wagons there. These horses and wagons belong to me. I have both Leavenworth telephones at Stillings, Mo. The numbers of these phones are 54 on the Bell and 101 on the Peoples. I have both phones at my stables, at No. 117 and 117% Delaware street, in Leavenworth. Both of these phones have the same number. It is 313. I also have a telephone at my home in Leavenworth. I receive my orders for beer at Stillings, some by letter and some by phone. There is no post office at Stillings. I get my mail in Leavenworth, but I do not open up my beer orders there. I either remail them to Stillings or take them over there before opening them. I open up personal letters in Leavenworth. “Q. What per cent of your orders for beer from Leavenworth, Kan.,-do you receive by mail? A. Well, we do not get but about 15 per cent. “Q. Then 85 per cent from Leavenworth are telephone orders? A. Yes, sir. My telephones are all connected directly with ‘central’ at Leavenworth. I pay no toll except my monthly bill. “Q. The same as any other telephone. Now, Mr. Kirmeyer, you receive orders for beer at No. 117 Delaware street, do you not ? A. Why, once in a while. We tell them to call up the other number. . . . “Once in a while a driver lays off or there is a rush, and then I hire a wagon to deliver for me. I pay them. My wagons usually come over once a day. Sometimes we fill special orders. If- customers are in a rush we accommodate them. I can not name any customer who is charged for delivering beer to him. I can not remember a single case in which I have made any charge for delivery. My drivers are not supposed to take orders for beer as they go round to make deliveries. They do not do this that I know of. Most of my trade in Leavenworth is what is called ‘family trade.’ My drivers deliver the beer at residences. When the order is received at Stillings over the telephone the name of the party is put on a tag or label, this is either given to the driver or put on a case of beer in the warehouse at Stillings and then my drivers haul the cases across the Missouri river and deliver them. We use the streets and alleys of Leavenworth in making these deliveries. . . . “My drivers take up the empties around town. They load them in a car in the yards here in Leavenworth, and when the car is filled I ship them back to Kansas City, Mo. “Q. Now, when your drivers go around to take up these empties they sometimes collect from customers, don’t they? “A. Why, they do if I give them a bill, a statement. “Q. And how often do you give them a bill to collect when they take up empties? A. Well, I could not remember as to that. “Q. About how often? A. Oh, I could not say; it depends on what locality they are going to and who the customers are. Most of the people I collect from. ... “Q. What did those receivers do here, so far as you' were concerned? A. Why, they scared everybody up. “Q. After that you moved across the river? A. Everybody moved. “Q. You have more family trade than you had then ? A. Why yes, in family trade. “Q. Did you do any family trade before you went to Stillings? A. Yes, sir. “Q. Delivered liquor at residences? A. Delivered beer. “Q. Delivered beer at residences. What change, if any, has been made in your method of doing business, so far as the family trade is concerned, since you went to Stillings? A. Well, there ain’t much change in the way of doing, business. . . . “Q. Do you place these labels on yourself or furnish them to the drivers? A. I give them the labels and they-paste them on. “Q. All liquor you ship to Oskaloosa you bill out from Leavenworth? A. We bill it Stillings and they bill it Leavenworth. "Q. You send your driver with beer here to the depot in Leavenworth and they ship it from Leavenworth ? A. I make out the bill of lading. “Q. Where do you deliver it to the railroad company ? A. At their depot.. “Q. They don’t take the bill of lading you make out? A. They change it from Stillings to Leavenworth. “Q. They do not accept it as shipping it from Stillings? A. Well, they have. “Q. They have no depot? A. No, they have no depot. “Q. The first place it passes out of your hands is in the city of Leavenworth ? A. At the depot. “Q. Up to that time you have it in your possession, the possession of your driver? A. Yes, sir. . . . “Q. And the bulk of your shipments to Kansas points are billed from the city of Leavenworth, are they not? A. Yes, sir. “Q. And never pass out of your hands until they reach the city of Leavenworth? A. Why, of course not. “Q. Now, I believe you said that when any one would call you up at No. 313 here for an order, you would tell them to call up at Stillings. Is that right? A. Yes, sir. “Q. When they do call up there at No. 313 and ask for beer, you tell them to call up Stillings ? A. I would say, ‘Call up across the river.’ . . . “Q. Prior to the appointment of these receivers you were in business here? A. Yes, sir. “Q. And the only purpose you had in moving from here to Stillings was on account of the excitement and the way they were going after them for selling liquor. A. No, it was on account of the law. “Q. As a matter of fact, at'that time you had a lot of customers? A. Yes, sir. “Q. And on account of the enforcement of the prohibitory law you moved across the river? A. They told me I had to move. “Q. How much of your mail would you say you get over here ? A. I do not get but very little mail. “Q. You get orders for beer over here? A.- No, sir. “Q. None of them? A. Oh, they might seild in one once in a while and I would send it back, just as 1 stated this morning, if I think it is a beer order. I can always tell; there is only a few towns I get them from; .1 cross it off and address it to Stillings. “Q. Why is it you take out of your box a letter which ;you think contains a beer order and send it to yourself at Stillings and not open it here? A. I might take it < over myself. “Q. Why do you not open it? A. Because it is' . against the law. “Q. Your purpose in carrying it back—your purpose in putting it back in the post office and carrying it to Stillings is to keep from violating the law? A. They are n’t very few of those. “Q. Is that the purpose? A. Yes, sir. . . . “Q. Now, this beer from which these orders were filled, how was it kept—all in one mass ? A. It was all piled up in a pile. “Q. And when you go to fill the various orders you pick up the cases.and have them labeled with the names of the party to whom you want them to go, and then the drivers take them to the various parties; is that right? A. Yes, sir.” Within three days after the findings were presented the state moved for a modification of the 15th finding so as to find that the methods of the defendant and conduct of his business were but a shift, device or subterfuge to evade the law, and for modifications of other findings. The court refused to modify the 15th finding, but made some modifications in others, and thereupon, on July 20, 1912, a motion of the state for judgment on the finding was denied. Judgment was rendered against the state for costs. On the same day a motion of the state for a new trial was overruled.