Leisy v. Hardin

Christiana Leisy, Edward Leisy, Lena and Albert Leisy, composing the firm of Gus. Leisy & Co., citizens of Illinois, brought their action of replevin against A. J. Hardin, the duly elected and qualified marshal of the city of Keokuk, Iowa, and ex officio constable of Jackson township, Lee county, Iowa, in the superior court of Keokuk, in said county, to recover 122 one-quarter barrels of beer, 171 one-eighth barrels of beer, and 11 sealed cases of beer, which had been seized by him in a proceeding on behalf of the state of Iowa against said defendants, under certain provisions of the Code of the state of Iowa; and upon issue joined, a jury having been duly waived by the parties, the case was submitted to the court for trial, and, having been tried, the court, after having taken the case under advisement, finally 'rendered and filed in said cause its findings of fact and conclusions of law in words and figures following, to-wit:

'(1) That plaintiffs, Gus. Leisy & Co., are a firm of that name and style, residing in the state of Illinois, with principal place of business at Peoria, Ill.; that said firm is composed wholly of citizens of Illinois; that said firm is engaged as brewers in the manufacture of beer in the said city of Peoria, Ill., selling same in the states of Illinois and Iowa.

'(2) That the property in question, to-wit, 122 one-quarter barrels of beer, of the value of $300, 171 one-eighth barrels of beer, value $215, and 11 sealed cases of beer, value of $25, was all manufactured by said Leisy & Co. in the city of Peoria, Ill., and put up in said kegs and cases by the manufacturers, viz., Gus. Leisy & Co., at Peoria, Ill.; that each of said kegs was sealed and had placed upon it, over the plug in the opening of each keg, a United States internal revenue stamp of the district in which Peoria is situated; that said cases were substantially made of wood, each one of them containing 24 quart bottles of bee, each bottle of beer corked, and the cork fastened in with a metallic cap, sealed and covered with tin foil, and each case was sealed with a metallic seal; that said beer in all of said kegs and cases was manufactured and put up into said kegs and cases as aforesaid by the manufacturers, to-wit, Gus. Leisy & Co., plaintiffs in this suit, and to open said cases the metallic seals had to be broken.

'(3) That the property herein described was transported by said Gus. Leisy & Co. from Peoria, Ill., by means of railways, to Keokuk, Iowa, in said sealed kegs and cases, as same was manufactured and put up by them in the city of Peoria, Ill.

'(4) That said property was sold and offered for sale in Keokuk, Iowa, by John Leisy, a resident of Keokuk, Iowa, who is agent for said Gus. Leisy & Co.; that the only sales and offers to sell of said beer was in the original keg and sealed case as manufactured and put up by said Gus. Leisy & Co., and imported by them into the state of Iowa; that no kegs or cases sold or offered for sale were broken or opened on the premises; that as soon as same was purchased it was removed from the premises occupied by Gus. Leisy & Co., which said premises are owned by Christiana Leisy, a member of the firm of Gus. Leisy & Co., residing in and being a citizen of Peoria, Ill.; that none of such sales or offers to sell were made to minors or persons in the habit of becoming intoxicated.

'(5) That on the 30th day of June, 1888, the defendant, as constable of Jackson township, Lee county, Iowa, by virtue of a search-warrant issued by J. G. Garrettson, an acting justice of the peace of said Jackson township, upon an information filed charging that in premises occupied by said John Leisy there were certain intoxicating liquors, etc., seized the property therein described, and took same into his custody.

'(6) And the court finds that said intoxicating liquors thus seized by the defendant in his official capacity as constable were kept for sale in the premises described in the search-warrant in Keokuk, Lee county, Iowa, and occupied by Gus. Leisy & Co. for the purpose of being sold, in violation of the provisions of the laws of Iowa, but which laws, the court holds, are unconstitutional and void, as herein stated.

'(7) That on the 2d day of July, 1888, plaintiffs filed in this court their petition, alleging, among other things, that they were the owners and entitled to the possession of said property, and that the law under which said warrant was issued was unconstitutional and void, being in violation of section 8 of article 1 of the constitution of the United States, and having filed a proper bond a writ of replevin issued, and the possession of said property was given to plaintiffs.

'From the foregoing facts the court finds the following conclusions: That plaintiffs are the sole and unqualified owners of said property, and entitled to the possession of same, and judgment for $1.00 damages for their detention, and costs of suit; that so much of chapter 6, tit. 11, Code 1873, and the amendments thereto, as prohibits such sales by plaintiffs as were made by plaintiffs, is unconstitutional, being in contravention of section 8 of article 1 of the constitution of the United States; that said law has been held unconstitutional in a like case heretofore tried and determined by this court, involving the same question, in the case of Collins v. Hills, decided prior to the commencement of this suit, and prior to the seizure of said property by defendant; to all of which the defendant at the time excepted.'

Judgment was thereupon rendered as follows: 'This cause coming on for hearing, plaintiffs appearing by Anderson & Davis, their attorneys, and the defendant by H. Scott Howell & Son and Wm. B. Collins, his attorneys, and the cause coming on for final hearing on the pleadings on file and the evidence introduced, the court makes the special finding offacts and law herewith ordered to be made or record, and finds that plaintiffs aret he sole and unqualified owners and entitled to possession of the following described personal property, to-wit: 122 one-quarter (1/4) barrels of beer, of the value of $300.00; 171 one-eighth (1/8) barrels of beer, of the value of $215.00; and eleven (11) sealed cases of beer, of the value of $25.00. That, paintiffs being in possession of said property by virtue of a bond heretofore given, said possession in plaintiffs is confirmed. The court further finds that the writ issued by J. G. Garrettson, a justice of the peace, under which defendant held possession of said property and seized same, is void, same having been issued under sections of the law of Iowa that are unconstitutional and void. That plaintiff is entitled to one dollar damages for the wrongful detention of said property. It is therefore ordered and considered by the court that the plaintiffs have and recover of defendant the sum of one dollar damages, and costs of this action, taxed at $_____. To which findings, order, and judgment of court the defendant at the time excepts, and asks until the 31st day of October, 1888, to prepare and file his bill of exceptions, which request is granted, and order hereby made.'

A motion for new trial was made and overruled, and the cause taken to the supreme court of Iowa by appeal, and errors therein assigned as follows: '(1) The court erred in finding that the plaintiffs were the sole and unqualified owners, and were entitled to the possession of the intoxicating liquors seized and held by appellant. (2) In finding that the plaintiffs were entitled to one dollar damages for their detention, and for costs of suit. (3) The court erred in holding that the sales of beer in 'original packages,' by the keg and case, as made by John Leisy, agent of plaintiffs, were lawful. (4) The court erred in tis conclusions and finding that so much of the law of the state of Iowa embraced in chapter 6, tit. 11, Code 1873, and the amendments thereto, as prohibits such sales of beer in the state of Iowa, was unconstitutional, being in contravention of section 8, art. 1, of the constitution of the United States. (5) The court erred in rendering a judgment for plaintiffs, and awarding them the intoxicating liquors in question, and damages and costs against defendant. (6) The court erred in overruling the defendant's motion for a new trial.'

The supreme court reversed the judgment of the superior court, and entered judgment against the plaintiffs and their sureties on the relevin bond in the amount of the value of the property, with costs. The judgment thus concluded: 'And it is further certified by this court, and hereby made a part of the record, that in the decision of this suit there is drawn in question the validity of certain statutes of the state of Iowa, namely, chapter 6 of title 11 of the Code of Iowa of 1873 and the amendments thereto, on the ground of their being repugnant to and in contravention of section 8 of article 1 of the constitution of the United States, said appellees, Gus. Leisy & Co., claiming such statutes of the state of Iowa are invalid, and the decision in this cause is in favor of the validity of said statutes of the state of Iowa.' To review this judgment, a writ of error was sued out from this court. The opinion of the supreme court, not yet reported in the official series, will be found in 43 N. W. Rep. 188.

The seizure of the beer in question by the constable was made under the provisions of chapter 6, tit. 11, Code 1873, and amendments thereto. Code 1873, p. 279; Laws 1884, c. 8, p. 8; c. 143, p. 146; Laws 1888, c. 71, p. 91; 1 McClain, Ann. Code, §§ 2359-2431, p. 603.

Section 1523 of the Code is as follows: 'No person shall manufacture or sell, by himself, his clerk, steward, or agent, directly or indirectly, any intoxicating liquors, except as hereinafter provided. And the keeping of intoxicating liquor, with the intent on the part of the owner thereof,' or any person acting under his authority, or by his permission, to sell the same within h is state, contrary to the provisions of this chapter, is hereby prohibited, and the intoxicating liquor so kept, together with the vessels in which it is contained, is declared a nuisance, and shall be forfeited and dealt with as hereinafer provided.'

Chapter 71, Laws 22d Gen. Assem., is an act approved April 12, 1888, (Laws Iowa 1888, p. 91,) of which the first section is as follows: 'That after this act takes effect no person shall manufacture for sale, sell, keep for sale, give away, exchange, barter, or dispense any intoxicating liquor, for any purpose whatever, otherwise than as provided in this act. Persons holding permits as herein provided shall be authorized to sell and dispense intoxicating liquors for pharmaceutical and medicinal purposes, and alcohol for specified chemical purposes, and wine for sacramental purposes, but for no other purposes whatever; and all permits must be procured as hereinafter provided from the district court of the proper county at any term thereof after this act takes effect, and a permit to buy and sell intoxicating liquors when so procured shall continue in force for one year from date of its issue, unless revoked according to law, or until application for renewal is disposed of, if such application is made before the year expires: provided, that renewals of permits may be annually granted upon written application by permit holders who show to the satisfaction of the court or judge that they have, during the preceding year, complied with the provisions of this act, and execute a new bond as in this act required to be originally given, but parties may appear and resist renewals the same as in applications for permits.'

Section 2 provides for notice of application for permit, and section 3 reads thus: 'Applications for permits shall be made by petition signed and sworn to by the applicant, and filed in the office of the clerk of the district court of the proper county at least ten days before the first day of the term; which petition shall state the applicant's name, place of residence, in what business he is then engaged, and in what business he has been engaged for two years previous to filing petition; the place, particularly describing it, where the business of buying and selling liquor is to be conducted; that he is a citizen of the United States and of the state of Iowa; that he is a registered pharmacist, and now is, and for the last six months has been, lawfully conducting a pharmacy in the township or town wherein he proposes to sell intoxicating liquors under the permit applied for, and, as the proprietor of such pharmacy, that he has not been adjudged guilty of violating the law relating to intoxicating liquors within the last two years next preceding his application; and is not the keeper of a hotel, eating-house, saloon, restaurant, or place of public amusement; that he is not addicted to the use of intoxicating liquors as a beverage, and has not, within the last two years next preceding his application, been directly or indirectly engaged, employed, or interested in the unlawful manufacture, sale, or keeping for sale, of intoxicating liquors; and that he desires a permit to purchase, keep, and sell such liquors for lawful purposes only.'

Various sections follow, relating to giving bond; petition as to the good moral character of applicant; hearing on the application; oath upon the issuing of permit; keeping of record; punishment by fine, imprisonment, etc.

By section 20, sections 1524, 1526, and other sections of the Code, were, in terms, repealed. The Code provided for the seizure of intoxicating liquors unlawfully offered for sale, and no question in reference to that arises here, if the law in controversy be valid.

By section 1, c. 8, Laws 1884, p. 8, ale, beer, wine, spirituous, vinous, and malt liquors are defined to be intoxicating liquors.

Section 1524, Code 1873, p. 279, was as follows: 'Nothing in this chapter shall be construed to forbid the sale, by the importer thereof, of foreign intoxicatingl iquor imported under the authority of the laws of the United States regarding the importation of such liquors and in accordance with such laws: provided, that the said liquor, at the time of said sale by said importer, remains in the original casks or packages in which it was by him imported, and in quantites not less than the quantities in which the laws of the United States require such liquors to be imported, and is sold by him in said original casks or packages, and in said quantities only; and nothing contained in this law shall prevent any persons from manufacturing in this state liquors for the purpose of being sold according to the provisions of this chapter, to be used for mechanical, medicinal, culinary, or sacramental purposes.' This section is substantially identical with section 2 of chapter 45 of the Acts of the Fifth General Assembly of Iowa, approved January 22, 1855, (Laws Iowa 1854-55, p. 58;) and it was carried into the revision of 1860 as section 1560, (Revision 1860, c. 64, p. 259.) It was repealed by section 20 of the act of April 12, 1888, as before stated.

Section 1553 of the Code, as amended by the act of April 5, 1886, (Laws Iowa, 1886, p. 83,) forbade any common carrier to bring within the state of Iowa, for any person or persons or corporation, any intoxicating liquors from any other state or territory of the United States, without first having been furnished with a certificate, under the seal of the county auditor of the county to which said liquor was to be transported, or was consigned for transportation, certifying that the consignee, or person to whom such liquor was to be transported, conveyed, or delivered, was authorized to sell intoxicating liquors in such county. This was held to be in contravention of the federal constitution, in Bowman v. Railway Co., 125 U.S. 465, 8 Sup. Ct. Rep. 689, 1062.

GRAY, HARLAN, and BREWER, JJ., dissenting.

James C. Davis, for plaintiffs in error.

''H. Scott Howell, Wm. B. Collins, and John Y. Stone'', for defendant in error.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.