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Dissenting Opinion : Harlan, Brewer, JJ.

ent case, in which the respondent was charged with selling intoxicating liquors contrary to law; State v. O'Neil, No. 28, in which he was charged with keeping intoxicating liquors with intent to sell, etc.; State v. Four Jugs of Intoxicating Liquor, National Express Co., Claimant, No. 25; State v. Sixty-eight Jugs of Intoxicating Liquor, National Express Co., Claimant, No. 26. They were disposed of at the same time, and in one opinion delivered by Chief Justice Royce. State v. O`Neil, 58 Vermont, 140, 150, 151, 166. It is shown by the report of the cases that O'Neil expressly invoked for his protection that clause of the Constitution of the United States which gives Congress power to regulate commerce among the States.

His exception was in these words: “The State cannot prohibit or regulate interstate commerce.” We give the very words of the exception, because of the statement in the opinion of this court that no such point was passed upon in this case by the Supreme Court of Vermont. 58 Vermont, 150. A like exception was taken by the claimant in cases Nos. 25 and 26, in these words: “Congress has exclusive power to regulate commerce among the States." 58 Vermont, 154. In disposing of this question, the court, in its opinion, common to all the cases before it, among other things, said: “ If it were competent for persons or companies to become superior to state laws and police regulations, and to override and defy them under the shield of the Federal Constitution simply by means of conducting an interstate traffic, it would indeed be a strange and deplorable condition of things. The right of the States to regulate the traffic in intoxicating liquors has been settled by the United States Supreme Court in the License Cases, 5 How. 577.” The opinion closed with these words: “ The result is that in the cases of the State v. O'Neil, numbers 27 and 28, the respondent takes nothing by his exceptions ;, and in the cases of the State v. Intoxicating Liquor, National Express Company, Claimant, numbers 25 and 26, the judgments are affirmed.” And one of the assignments of error in this court is to the effect that the court below erred in adjudging that the statute of Vermont, in its application to the facts of this case, was not in conflict with the commerce

Dissenting Opinion : Harlan, Brewer, JJ.

clause of the Constitution of the United States. How, then, can this court decline to consider the question, distinctly raised by O'Neil in the court below, as well as here, namely, that the transactions on account of which he was prosecuted constituted interstate commerce, which was not subject to regulation by the State? The defendant having expressly excepted to the judgment against him upon the ground that it was not consistent with the power of Congress over commerce among the States, and the Supreme Court of Vermont having adjudged that he could take nothing by his exception, how can it be said that this question was not presented to and was not determined by that court adversely to the accused?

But if it were true that the court below did not, in fact, pass upon, but ignored, this question, with respect to O'Neil, and restricted its observations to the cases in which the National Express Company was claimant, it would not follow that this court is without jurisdiction to determine it. We have often held that a judgment of the highest court of the State which failed to recognize a Federal right, specially set up and claimed, ought not to be disturbed, unless its necessary effect was to deny that right, or where it proceeded, in part, upon another and distinct ground, not involving a Federal question, but sufficient, in itself, to maintain the judgment without reference to that question. San Francisco v. Itsell, 133 U. S. 65, 66; Beaupré v. Noyes, 138 U. S. 397, 401. Now, it

may be true, as I think it is, under the facts of this case, that the title to the liquors sold by O'Neil did not pass, and he did not intend it should pass, from him upon the delivery to the express company, in New York, of the jugs or vessels containing the liquors, and, therefore, that the sales were not, in law, consummated until the liquors were received in Vermont and paid for there by the vendee. Still, the question remained, whether the sending of the liquors from Whitehall, New York, to Rutland, Vermont, was or was not interstate commerce protected by the Constitution of the United States. The contention of the defendant in this court, as it was in the court below, is, that, even if the sales were not consummated until the liquors were delivered to the respective vendees, he had

Dissenting Opinion: Harlan, Brewer, JJ.

the right, under that instrument, to send the liquors into Vermont, and deliver them there, in the original packages, that is, in jugs or other vessels, upon payment of the price charged. And the necessary effect of the judgment was to deny this right, thus distinctly asserted. The decision that the sales were consummated in Vermont, and, consequently, that the defendant violated the laws of that State, in doing what he did there, by his agents, is not, in itself, sufficient to support the judgment, except upon the theory that he had no right, under the Constitution of the United States, to send the liquors into Vermont to be there delivered in the original packages. It seems to me entirely clear, in any view of the case, that the court below necessarily determined, adversely to the defendant, a right specially set up and claimed by him under the Federal Constitution.

In view of what I have said, it is proper to state that, in my judgment, the sending by the defendant from Whitehall, New York, to Rutland County, Vermont, of intoxicating liquors, in jugs, bottles or flasks, to be delivered only upon the payment of the price charged for the liquors, were not, in any fair sense, transactions of interstate commerce protected by the Constitution of the United States against the laws of Vermont regulating the selling, giving away and furnishing of intoxicating liquors within its limits. The defendant, in effect, engaged in the business of selling, through agents, by retail, in Vermont, intoxicating liquors shipped by him, for that purpose, into that State from another State. What he did was a mere device to evade the statutes enacted by Vermont for the purpose of protecting its people against the evils confessedly resulting from the sale of intoxicating liquors. The doctrine relating to “original packages” of merchandise sent from one State to another State does not embrace a business of that character. But whether this be so or not is a question this court has jurisdiction to determine in the present case, and it is clearly the right of the defendant to have it determined. If the jugs, bottles or flasks, containing intoxicating liquors sent into Vermont from the defendant's place of business, over the border, were original packages, the shipment of which


Dissenting Opinion: Harlan, Brewer, JJ.

into that State, prior to the passage of the Act of Congress of August 8th, 1890, c. 728, 26 Stat. 313, known as the Wilson statute, was protected by the Constitution of the United States against state interference until delivered to the consignees, he is entitled upon the principles announced in Leisy v. Hardin, 135 U. S. 100, to a reversal of the judgment.

But there is another reason why this writ of error should not be dismissed for want of jurisdiction. The defendant contended in the court below that the judgment of the Rutland County Court inflicted upon him, in violation of the Constitution of the United States, a punishment both cruel and unusual. It is not disputed that he distinctly made this point. And the question was decided against him in the court below. It is true the assignments of error do not, in terms, cover this point, but it is competent for this court to consider it, because we have jurisdiction of the case upon the grounds already stated. I fully concur with Mr. Justice Field, that since the adoption of the Fourteenth Amendment, no one of the fundamental rights of life, liberty or property, recognized and guaranteed by the Constitution of the United States, can be denied or abridged by a State in respect to any person within its jurisdiction. These rights are, principally, enumerated in the earlier Amendments of the Constitution. They were deemed so vital to the safety and security of the people, that the absence from the Constitution, adopted by the convention of 1787, of express guarantees of them, came very near defeating the acceptance of that instrument by the requisite number of States. The Constitution was ratified in the belief, and only because of the belief, encouraged by its leading advocates, that, immediately upon the organization of the Government of the Union, Articles of Amendment would be submitted to the people, recognizing those essential rights of life, liberty and property which inhered in AngloSaxon freedom, and which our ancestors brought with them from the mother country. Among those rights is immunity from cruel and unusual punishments, secured by the Eighth Amendment against Federal action, and by the Fourteenth Amendment against denial or abridgment by the States. A


judgment, therefore, of a state court, even if rendered pursuant to a statute, inflicting or allowing the infliction of a cruel and unusual punishment, is inconsistent with the supreme law of the land. The judgment before us by which the defendant is confined at hard labor in a House of Correction for the term of 19,914 days, or fifty-four years and two hundred and four days, inflicts punishment, which, in view of the character of the offences committed, must be deemed cruel and unusual.

Without noticing other questions, I am of opinion that upon the ground last stated the judgment should be reversed.

MR. JUSTICE BREWER authorizes me to say that in the main he concurs with the views expressed in this opinion.







No. 241. Argued March 24, 25, 1892. - Decided April 4, 1892.

A collision occurred between a ship and a steam-tug while the navigation

rules established by the act of March 3, 1885, c. 354, 23 Stat. 438, were in force. The tug was required to keep out of the way of the ship and the ship to keep her course. The tug ported her helm to avoid the ship, and that would have been effectual if the ship had not afterwards changed her course by starboarding her helm. If the ship had kept her course, or ported her helm, the collision would have been avoided. The change of course by the ship was not necessary or excusable. The tug did everything to avoid the collision and lessen the damage. The tug had a competent mate, who faithfully performed his duties although he had no license. Although the tug had no such lookout as was required by law, that fact did not contribute to the collision. The tug did not slacken her speed before the collision. There was no risk of collision until the ship starboarded, and then the peril was so great and the vessels were such a short distance apart that the tug may well be considered as having been in extremis, before the time when it became her duty to stop and reverse, so that any error of judgment in not sooner stopping and reversing was not a fault.

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