Opinion of the Court by
Affirming.
The appellee, J. M. White, was tried and acquitted of : the offense of unlawfully refusing, neglecting and failing i to keep open to public inspection during business hours of the Adams Express Company, in Bowling Creen,
Under the stipulation of facts, it appeared that the company maintained a local office in the city of Bowling Green, and that in said city the sale of intoxicating liquors for beverage purposes was prohibited by law; that the appellee White was the local agent, at Bowling Green, of the Adams Express Company, and the manager of its local office; that in said local office White, as agent and ' manager, kept two separate books, in which were entered immediately upon receipt thereof, truthful statements of the quantity and kind of liquors received, with the name and address of the consignor, and the name and address of the consignee; the' purpose for which said liquor was intended to be used as stated on the outside of the package containing such liquor; the date when received, and the date when delivered, and by whom and to whom delivered, and with a blank space in said book in which the consignee, by himself or agent, was required to sign his true name, before said liquor was delivered to him or his agent; and that said book was open to public inspection during the business hours of said company.
It was further stipulated that only shipments of liquor from points within the State of Kentucky to the city of Bowling Green were entered in one of the books and in the manner above referred to; and that no interstate shipments of liquor, that is to say, no shipments of liquor by the company from places without the State of Kentucky into the State of Kentucky, and consigned to persons or consignees at Bowling Green, were entered in the book of intrastate shipments; but that the company kept another and different book which showed all such interstate shipments of liquor from places without the State of Kentucky to Bowling Green, showing, in substance, the quantity and kind of said liquor; the name and address of the consignor; the name and address of the consignee; the fact whether or not the package containing said liquor was marked for the personal use solely of the consignee; the date when received and delivered, and by whom and to whom delivered, as well as a receipt from the person to whom the same was delivered; and the last named book of interstate shipments was not open to pub-
It was further stipulated that on the day in question E. H. Porter, a private citizen of Bowling Green, holding no official position, entered the local office of the Adams Express Company and requested of White, its agent, to be shown the record of interstate shipments of intoxicating liquors, above described, showing the shipments of liquors from places without the State of Kentucky consigned to persons at or in the city of Bowling Green, Kentucky; that Porter’s request was refused by White, as agent, and the record of interstate shipments was not shown to Porter; and that White, as agent at the time, expressly relied upon, and still relies upon, the provision of the Act of Congress entitled, “An Act to Regulate Commerce,” approved February 4th, 1887, together with the amendment thereto, known as the Mann-Elkins Act, passed June 18th, 1910, and entitled, “An Act to Create Commerce Court, and amending the Act entitled 'An Act to Regulate Commerce,’ approved February 4th, 1887, as theretofore amended, and for other purposes.” He relied particularly upon that provision of the Mann-Elkins Act which provides that it shall be unlawful for any common carrier, subject to the provisions thereof, or any agent of such carrier, knowingly to disclose to any person other than the shipper or consignee, any information concerning the nature, kind', quality, destination, consignee, or routing of any property tendered or delivered to such carrier for interstate transportation, which inspection might be used to the detriment or prejudice of such shipper or consignee, or which might improperly disclose his business transactions to a competitor, under penalty of a fine of not more than $1,000.00.
The warrant was issued under the authority of section 3 of chapter 7 of the act of the Kentucky Legislature, approved March 9th, 1914, which reads as follows:
The Mann-Elkins Law, passed June 18th, 1910, as an amendment to the Interstate Commerce Act of 1887, provides, in part, as follows:
“It shall be unlawful for any common carrier subject to the provision of this act, or any officer, agent or employee of such common carrier, or for any other person or corporation lawfully authorized by such common carrier, to receive information therefrom, knowingly to disclose to or permit to be acquired by any person or corporatin other than the shipper or consignee, without the consent of such shipper or consignee, any information concerning the nature, kind, quantity, destination, consignee, or routing of any property tendered or delivered to such.
That act further provides that any information of the character above described, may be obtained by any officer or agent of the government of the United States, or of any State, in response to any legal process, and imposes a penalty of not more than $1,000.00 for a violation thereof.
Unquestionably, the Mann-Elkins Law was designed for the protection of interstate commerce, and was an extension of the original Interstate Commerce Act of 1887. Under the operation of the original act of 1887, it was found that great abuses existed, and to prevent those abuses and to protect shippers from the injury resulting from the improper acts of the common carrier in disclosing information as to the transactions of shippers to their competitors, the amendment above referred to was enacted.
The federal act, however, could apply only to interstate shipments; and, by its terms, it does not pretend to control intrastate shipments. On the other hand, the Kentucky statute of 1914, supra, under which this prosecution arose, applies to intrastate shipments and could not affect interstate shipments, unless the federal law, approved March 1st, 1913, known as the Webb-Kenyon Act, had the effect of withdrawing interstate shipments of liquor from the protection afforded to interstate shipments by the federal constitution, and made them subject to the State laws.
The Webb-Kenyon Law reads as follows:
“An Act divesting intoxicating liquors of their interstate character in certain cases.
“Be it enacted, etc., that the shipment or transportation, in any manner or by any means whatsoever, of any spirituous,-vinous, malted, fermented, or other intoxicating liquor of any kind, from one state, territory, or district of the United States, or place non-contiguous to but subject to the jurisdiction thereof, into any other State, territory, or district of the United States, or place non-cóñtiguous to but subject to the jurisdiction thereof, or from any foreign country into any state, territory or district of the United States, or place non-contiguous to but subject to the jurisdiction thereof, which said spiritu
It will be observed that by this express provision of the Webb-Kenyon Law, only such interstate shipments are thereby prohibited as are “intended by any person interested therein, to be received, possessed, sold, or in any manner used in violation of any law of such State. ’ ’
The Webb-Kenyon Law puts beyond the protection afforded interstate commerce any intoxicating liquor shipped into the State to be sold or in any manner used, in violation of a law of this State. Palmer v. Express Co., 129 Tenn., 116; State v. Doe, 92 Kan., 212; State v. Express Co. (Iowa), 145 N. W., 451; U. S. v. Oregon-Washington R. & N. Co., 210 Fed., 378; Van Winkle v. State (Del.), 91 Atl., 385; Ex Parte Peede (Tex.), 170 S. W., 749; Southern Express Co. v. State (Ala.), 66 South, 115; State of West Virginia v. Adams Express Co., 219 Fed., 802.
Before the passage of the Webb-Kenyon Law, all interstate shipments were under the protection of the commerce clause of the federal constitution, and they must so remain except to the extent they have been taken out of that protection by the Webb-Kenyon Law; and, since that law specifies the character of the shipment designed to be taken from under the protecting clause, to-wit, liquors intended to be received, possessed, sold, or in any manner used in violation of any law of a State, it was manifestly not the intention of Congress to remove this protection from any other character of shipment.
The question, therefore, for decision in the case under consideration is, whether intoxicating liquors shipped from points outside of the State of Kentucky and received at Bowling Green, Kentucky,' and concerning which the record in question was kept, were, by the operation of the Webb-Kenyon Law, divested of the protection afforded to interstate shipments by the Federal Constitution.
Obviously, such shipments áre not divested of that protection, unless they are intended to be received, pos
Bnt all shipments of intoxicating liquors into Kentucky are not prohibited by law. It is not unlawful for one to buy, where it is lawful to sell it, intoxicating liquor for his own use and bring it into Kentucky, or to have liquor so purchased in his possession, for such use. Adams Express Co. v. Commonwealth, 154 Ky., 471, 48 L. R. A. (N. S.), 342.
In the case last above cited we said: “The result of our views on the whole case is, that whether a carrier of an interstate shipment of liquor subjects itself to punishment or not, depends on the use to which the person to whom it delivers liquor intends to put it. If this use violates a law of the State, then the carrier may be punished; if it does not, the carrier has not committed any offense.
“A further result is that the guilt or innocence of the carrier becomes in each case a question of fact to be determined as are other disputed issues of fact under our law. ’ ’
See also Adams Express Co. v. Commonwealth, 160 Ky., 66; and Adams Express Co. v. Kentucky, 238 U. S., -, decided June 14, 1915.
The protection of the commerce clause still attaches to all lawful interstate shipments of liquor; and, to bring the transaction involved in this controversy within the operation of the Webb-Kenyon Law, and divest it of the protection of the commerce clause of the Constitution, the court would have to presume, without proof, that the book which Porter requested to see contained a record of shipments of liquor intended to be received, possessed, sold, or in some manner used in violation of the law of Kentucky. But, under well established principles of law, the contrary presumption must prevail in the absence of proof, and there is no proof here as to the character of the shipment. The carrier must take notice of the use for which the liquor is intended, and if this use will violate the law of the State at the place of delivery, it may refuse to accept the shipment, or, having received it, may refuse to deliver it. But, as above stated, in the absence of proof upon the subject, it must be presumed that the carrier did not violate the State law, and consequently that the record in question is a record of shipments of liquors for lawful purposes.
Judgment affirmed.