xt70zp3vt865_147 https://nyx.uky.edu/dips/xt70zp3vt865/data/mets.xml https://nyx.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 18601954 14 Cubic Feet 31 boxes archival material 63m46 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Adams Express Company v. The Commonwealth of Kentucky text Adams Express Company v. The Commonwealth of Kentucky 2016 1906 1906 section false xt70zp3vt865_147 xt70zp3vt865 V g? r

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i COURT OF APPEALS.

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‘ Adame Express company, Appellant.

Against // Brief for Appellant.

, The Commonwealth of Kentucky, Aypellee,

}

At the term, 1906, of the Floyd Cincuit Court an indict—
ment was returwed against the Appellant, charging the commission
of the offense of unlawfully selling spiritous liquors to h. 8. Rob—
inett, without a license, in a local Option district, viz. in Civil
District No. , Floyd County, Kentucky.

, A Demurrer to the indictment was filed, which raieed the ques-
tion of the sufficientcy of the indictment with respect to all in- ‘
sufficient avernents. Among the important considerations are:-

Can the defendant under the averment of the indictment be shown to
have coptfltted any offense? In other words, can an individual, or
a corporation, be indicted for another's doing of an unlawful act?
Certainly not, unless the amendment to Sec. 2557 of Kentucky Statute,
by Act of the Kent cky hegialature, approved the II day of march,
1902, will authorize tbie to be done; hut, it nypears to me, that
even in that state of case the defendant would have to be indicted
with the shipper, or the agent making the delivery; and it was and
is an error to indict the Adans Express Co pany alone.

This demurrer having been ruled adversly to the defendant,

, thereupon the defendant plead 'Not Guilty', and a jury was enman-
nelled and accepted, but not sworn, the Attorney for the Commonwealth
read the indictment and announced defendant's plea, when it waeimmem-
bered by the Clerk that the jury had not been sworn; thereupon the

‘ Attorney for the Commonwealth entered notion that the jury be then
sworn, and again called upon the defendant to plead, and it then

 . 2. ‘
, plead 'Not Wuilty' and 'Once in jeopardy'
The Court proceeded with the hearing over defendant's object- ‘
t ion; and endeavored to prove that Laynesville was a district in ’
which local option existed. The evidence admitted by this Court on .
this issue was error: The petition to the County Court to submit
- the quwstion of local option to the voters was not signed by 25%
of the voters voting in said precinct (Kentucky Statutes § 2554);
and the election was ordered to he and was held less than sixty
days (Kentucky Statutes § 2554) from the time and only fifty eight
days had elapsed; and the election held on said date was unauthor—
ized by law and was and is void. The Court erred, over appellant's :
objection, in permitting said petition, order and certificate of i
the election to be read to the jury as in legal contemplation was ‘
nul tiel record. 3
The Court was in error in allowing and permitting evidence to I
t be received on questions or shipment and delivering to Parsons as
‘ the only ;uestion charged in the indictment was sale and delivery ‘
‘ to Hobinett, and evidence as to sales to Parsons had the effect of
i prejudieing and inflaming the minds of the jury against defendant.
’ The Court misinstructed the jury and refused, on defendant's
g motion, to prOperly instruct the jury. .
i The defendant, The Adams Express Company, is shown by the ev— f
‘ t
i idenoe to be a common carrier, engaged in Inter—State Commerce be- r
L tween the several states and particularly between Ohio and Kentucky. {
E That Sundry packages, contents to it unknown, were shipped by the
. Brookville Distillery Company and White Oak Distillery Company, in
5 and From Cincinnati, in the State of,0hio, and consigned to E. S.
Robinett, a citizen of Kentucky, at Harold, P.0., and station, in L
Ploy: County, in said last named State. The freight charges on these ‘

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3.
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i? goods were prepaid by the shippers, but on each package was narked
; "C.O.D. charged", which were paid by the consignee to the Agent at
ii the place and time of the delivery and was returned by the Agent
2} so receiving it,oy express, to said Company at Cincinnati, and there :
r delivered to the shippers. It is contended by The Connouwealth thd} I
‘7 this was a violation of Sec. 2557 B—4, KcntucKy Statutes. Defendant ‘
.‘ says Not; and that the said Statute was and is in violation of '
, Section 8 of the constitution of the United States which is "Congress
; has power to regulate Commerce with foreign nations and among the
‘ schral states and with the Indian tribes", and in so far as the
' said Act of the Kcntwct/ Legislature undert~kes to interfere, reg-
ulate or restrict inter-State commerce, it is unconstitutiwnal and
void. ————— American Express Cormany v. Iowa, 136 U. S. 153; Adams
‘ EXpress Company v. Iowa, 156 U. S. I47. I
The trial Court erred in not sustainin? the defendant's motion
to instruct the jury to find for Defendant; and further erred in
instructing the jury as in No. I and No. 2 given and No. A and No.B.
asked and refused. In instruction No. I giVen, the benefit of the
‘ protection of Inter—State Commerce is withheld from defendant upon
I either of three propositions:-
I I. If the goods were consigned from an unknown fiIlppeT,
‘ 2. Tlat Hobinett had not ordered the merchandise which
5 the Court says in the instruction was whiskey,
{ 3. Thai defendant or its agent Know that hobinett had not
ordereed the same, or had notice that the some had
i not been ordered by Robinett
% any one of which was sufficient, according to the Court's idea
i expressed to authorize the jury to rind the defendant guilty.
1 Tiernan, witness for defend nt, shows that the packages daily
E handles by the defendant Company in Cincinnatu amount to 15000, more
i than ten packages each minute of the day. What time, I ask, would
I this allow the defendant Company to make inquiry of each shipper to
} find out the details of the transaction of every package tendered
} for shipment? You answer, a most unreasonable requirement which would
I

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i paralize this branch of quick transportation. ’
t when th? question of yroteotion by the Inter-State Commerce
; clause of the Constitution is presented at all in Instruction N0. 2, ‘I
I it ismede to depend on inch of Knowledge on the part of the Agent,
' I
j of the Company making the delivery,aand of his making delivery with-
f out delay——-——~and this, notwithstanding the protection of the In—
, ter—Stnte Commerce provision extends until the actual delivery of
the 33705“: to ‘rfle Sihi}1§u33’.‘.f
I on aware that this{Honorahle Court has ruled, in cases sim—
ilar to this finding, at rariance from those herein expressed, but
I an eonstrained to believe and to urge that the Court's views were
; no doubt in great measure,influenoed by a desire to protect the cit—
x t ’ izens of our Commonwealth against the haneful influences of an easy
method of proourin: mean whiskey; and while the purpose is laudible
in the extreme, it should he remembered that the vest interests of
the nation, and inter—State relations are such, as to justify the
wisdom of the framers of our Constitution to delegate this intert-
ent function to the Congress of the United States, To allow the
legislature of the State to hamper the operation of that provision
of the Federal Constitution would bring about the mischief which
the powers delegated to Congress were intended to remedy; and if it
leys within the power of the States to enact measures restricting
r the shiyment of merchandiee from one State to another, then it could
) with equal propriety he urged that the other yowers delegated to
Congress could be qualified by State Legislatures.
We, for the reasons herein set out, respectfully ask a reversal
, of the judgment of the Court below,
Adams Express commany,
BY
, Lawrence Maxwell, Jr., Of Counsel. Attorney.
_ ,7 H V i . V. , . “W_i¢v

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