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44 Commonwealth v. Kinsley, 108 Mass. 24.

4s Commonwealth v. Doe, 108 id. 418.

4A Commonwealth v. Intoxicating Liquors, 105 Mass.
595. But see cases ante^ and Commonwealth v. Gafley,
122 id. 834; Commonwealth v. Levy, 126 id. 240; Com-
monwealth v. Kennedy, 97 id. 224.

« 109 Ind. 585.

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No. 3

defendant's property. The evidence showed
that the witness went into the hotel office on
Sunday and from there into the saloon, where
he found two or three persons, but neither
the hotel proprietor nor his clerk were there
or in the office. One of the persons in the
saloon was a boarder, of whom the witness
asked if he had any beer, he replied ''there
is a bottle why don't you take it." The bot-
tle referred to, together with a glass was on
the counter ; the witness poured a glass of
beer out of the bottle, drank the same, placed
five cents on the counter and left. There
was no evidence that this occurred with the
defendant's consent and knowledge other than
as shown by the above facts. The statute
made it an otfense to sell beer or give away
any intoxicating liquor to be drank on Sun-
day. It was held that the defendant was
properly convicted in the court below. Again,
to support an indictment for keeping and
maintaining a tenant for illegal sale of intox-
icating liquors, a printed card containing the
defendant's name, the location of her place
of business and the words '^ dealer in im-
ported wines and liquors," also the words
"porter f^nd lager beer" was offered by the
prosecutor, coupled with the statement of the
witness producing the same, that a few days
before the trial in October, 1875, the defend-
ant then told him it was her card and that
she had had the same printed the year before.
It was permitted to be read as showing that
on May 1st, 1875, the day alleged in the com-
plaint, the defendant was the keeper of the
house in question. It was held that the evi-
dence was competent and was properly ad-
mitted.^ And proof of the sale of an article
called *'pop," shown on the trial to be malt
liquor which possessed intoxicating qualities
and would intoxicate if a sufficient quantity
were taken, and that the same tasted like poor
beer and was drawn from beer kegs, is suffi-
cient to warrant the jury in finding the de-
fendant guilty of the sale of intoxicating
liquors without a license.*® In Common-
wealth V. Dowdican,^ evidence that the wit-
ness had seen the defendant "selling whisky"
within the time covered by ther indictment,
and that the contents of ^ tumbler looked
like whisky, was held admissible, and the
prosecution was permitted to ask the same

tf Commoo wealth y. Thomley, 119 Mass. 104.
49 Qodfriedson v. People, 88 111. 285.

witness "what was in the tumbler" and
was also permitted to ask the witness in what
condition he had seen people there, and the
witness was allowed to answer that he had
seen them going in sober and coming out
drunk." Again, a certified copy of a record
of a deputy collector of the United States
internal revenue, showing that the defend*
ants paid a special tax as liquor dealers, dur-
ing the period covered by the indictment was
declared to be competent evidence.^^

License; Burden of Proof, — ^It is decided, in
United States v. Nelson,^ that the accused is
bound to prove a license when the fact is pe-
culiarly within his knowledge, and this is so,
although there is no negative averment of his
having a license.^* So where the acts charged
and put in evidence were of sales of intoxi-
cating liquors to be drank upon the premises
where sold, and it appeared that the defend-
ant had a license from the authorities of the
town in which his place w^s located, as a
druggist, which expressly prohibited the sale
by him or his agents of intoxicating liquors
to be drank on the premises or in his place
of business, and the ordinance under which
the license was granted provided that the
corporation might grant such licenses to drug
stores upon the payment of a certain sum;
it was held that, in order to avail himself of
such license as a defense, the defendant must
show that it was broad enough to cover the
acts as alleged and proved, that failing in
this he was liable.^

Private Instructions, — Where the statute
provides that whoever by himself, clerk or
servant shall sell etc., the evidence being
that the defendant kept intoxicating liquors
for sale, he may not limit his responsibility
for sales made by his clerk by showing what

fiO 114 Maps. 257.

01 So a witness may testify that he has heard parties
call for whisky in the defendant's saloon, and that de-
fendant had thereupon poured something into a tum-
bler, which the person calling for whisky h<^d drunk,
and that the color was reddish, the complaint being of
keeping a tenement used for the Illegal sale of intoxi-
cating liquors. Commonwealth v. Owens, 114 Mass.
252. See also Commonwealth v. O'Donnell, 9 N. Eng.
Rep. 509; Mason v. Lothrop, 7 Gray, 354.

fis State y. Wiggins, 72 Me. 425.

« 29 Fed. Rep. 202.

M See also State v. Back (Minn.), 80 N. W. Rep. 764;
Commonwealth y. Bafferty, 138 Mass. 574; Common-
wealth y. Carpenter, 100^(2.204; Commonwealth y.
Shea, 115 id, 102; Commonwealth v. Dean, 110 id, 857.

« Spoke y. People, 89 HI, 617; Prather v. People, 86
i 111. 86, distinguished.

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Vol. 28.



instructions he had given him in regard to
such sales.*^ So private instructions to a
clerk or bar-keeper regarding selling to
minors were held irrelevant and properly ex-
cluded in Loeb v. State.*^

Detective; Cross-examination, — ^It was de-
cided, in State v. Rollins,^ that a witness in a
liquor case, having testified that he was em-
ployed as a detective, might not be asked
upon cross-examination as to who employed
him, such question being entirely irrelevant,
and one which might properly be excluded.

Beading Standard Works to the Jury. — In
Alabama, it has been held no error to permit
State to read the jury extracts from a stand-
ard medical work on the subjects of vinious
and fermented liquors.**

Minor; Evidence as to Age. — A minor is a
competent witness to his own age, although
his only knowledge thereof is obtained from
the date of his birth in the family Bible, or his
information may have been derived from some
other source.^ And the uncle of a minor, to
whom the sale of liquor was made who had
known him from early infancy, may testify
that he does not from his knowledge of him
believe him to be of age, and such evidence
is not open to objection as secondary evi-
dence, although the minor's parents could
have been had as witnesses but were not.^
So a witness who has testified to the dress, ,
manner, and appearance of the person to
whom the sale was made may then give his
opinion as to the age of that person.^

Purchaser; When Required to Testify. — ^A
purchaser of liquors may be required to
testify as to whether the defendant had sold
him liquors, since such evidence would not
tend to criminate or bring him into disgrace,
within the meaning of the law.^

Associations and Clubs; Who Liable. — ^The
Bevised Statutes of Illinois 1874, ch. 43, sec.
2 of the ^'dram-shop" act makes it unlawful
for any person not having a license to keep a
dram-shop either by himself or another, or

<( Moeoher y. People, 91 HI. 494.

S7 75 Ga. 258.

» 77 Me. 880.

» Merkle y. State, 87 Ala. 189. See Weed v. State,
65 Ala. 16.

« Pounders y. State, 87 Ark. 899; Edgar v. Stote, id.

a Weed y. State, 65 Ala. 18. See Marshall y. State,
49 id. 21.

tt Commonwealth y. O'Brien, 184 Mass. 200, citing
Commonwealth y. Stortevant, 117 id, 122, 188.

•B Commonwealth y. Kimball, 24 Pick. 869.

to sell intoxicating liquors of any kind in less
quantity than one gallon, or in any quantity
to be drank on the premises, or in any adja-
cent room, etc., providing a penalty for a
violation thereof. Held, that any person
who, without a license to keep a dram-shop,
sells or gives away the same in less quantity
than one gallon, or in any quantity to be '
drank on the premises, or in any adjacent
room or place, or who resorts to any shift or
device to evade the law, is guilty of unlawful
selling, and is liable therefor. In this case
an association was formed with the declared
object of promoting * 'temperance, friendship
and good feelings in the community at large, ' ' .
and had a president, vjce president, secre-
tary and treasurer with defined duties, and
it also had a capital stock of three hundred
dollars. The object and purposes of the as-
sociation, were not set forth in either its
articles of association or by-laws. Prior to
its formation the defendant was licensed to
and did keep a dram-shop. At the time of
ihfi formation of the association it claimed to
have purchased the same, together with the
liquors, etc., therein, of the defendant, whom
they elected as treasurer. Any person could
become a member upon the payment of one
dollar, for which sum he received a ticket
with figures thereon from one to twenty in-
clusive. With this ticket beer, whisky, cigars
etc. , could be purchased and certain numbers
corresponding to the price of the thing were
thereupon punched out of the ticket by the
treasurer. The business was continued in
this way without any license for about three
months, during which time the treasurer had
the entire management of the business, pur-
chasing and replenishing the stock when
necessary and paying the bills, nor was an
account thereof kept with the association nor
distribution of profits made to the members.
At the time of the prosecution the members
numbered about three hundred. It was held
to be clearly a shift or device to evade the
provisions of the law, and that whatever sales
or gifts of liquor were made under the ar-
rangement constituted ** unlawful selling,"
and that the treasurer was T able therefor ;
and if, as a matter of law, the liquors were
owned by the company as partnership prop-
erty and the liquors so purchased were given
or retailed out to the several members by the
company, they hatin'g no license, ij^s would

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No. 3

be an unlawful enterprise, and all the mem-
bers would be guilty of a violation of the
statute.^ In a Massachusetts case, the club
was organized with limited and selected
members and duly elected officers, the
purpose being to furnish refreshments to
those who belonged to it. A steward was
employed at a monthly salary, and a sum
was also paid him for the use of the room
where the liquors found were kept. In ad-
dition to an admission fee of one dollar, paid
by each member, checks were issued to the
members, each representing a value of five
cents. The income from these sources was
used in purchasing liquors which were used
in common by the club. The defendant, as
steward, was obliged to furnish members
checks in such amounts at five cents each as
were desired. It was also his duty to take
care of and furnish to the members liquors
for drinking, in such quantities as were de-
manded, and to receive payment in checks
therefor when delivered. The liquors seized
were in the custody of the steward who had
formerly held a license to sell, to be drubk
on the premises. No license was held by
him at the time of the seizure, and the town
in which the liquors were found had voted to
grant licenses for the sale of intoxicating
liquors. The defendant was found guilty,
and the case was carried by consent to the
supreme court for determination. The court
declared that the legislature ' 'prohibited the
selling or exposing or keeping for sale spirit-
uous or intoxicating liquor," except in the
manner provided by statute, that it had ''not
undertaken to prohibit the drinking or buy-
ing of intoxicating liquors, or the distribution
of it in severalty among persons who own it
common. If, therefore, two or more per-
ons un e in buying intoxicating liquor, and
then distribute it among themselves, they do
no' violate the statute, and the intent with
which they do this is immaterial ;" and again,
**If a club were really formed solely or
naaiely for the purpose of furnishing intoxi-
cating liquors to its members, any person
could become a member by purchasing tickets
which would entitle the holder to receive such
intoxicating liquors as he called for upon a
valuation determined by the club, the organ-
ization itself might show that it was the in-
tention to sell intoxicating liquors to any
M Blolrart v. People, 79 111. 85.

person who offered to buy, and the sale of
what might be called a temporary member-
ship in the club with a sale of the liquors
would not substantially change the character
of the transaction. One inquiry always is,
whether the organization is bona fide a club
with limited membership into which admis-
sion cannot be obtained by any person at his
pleasure, and in which the property is actu-
ally owned in common with the mutual rights
and obligations which belong to such common
ownership under the constitution and rules
of the club, or whether either the form of a
club has been adopted for other purposes,
with the intention and understanding that the
mutual rights and obligations of the members
shall not be such as the organization purports
to create* or a mere name has been assumed
without any real organization behind it." ^

It is said in this case that "the evasion of
the law intended in Commonwealth v. Smith,^
is an evasion by means of a form or device
which is apparently legal, while the subtance
of what is done is within the prohibition of the
statute." •^ Joseph A. Joyce.

o Commonwealth v. Pomphret, 187 Mass. 664.

« 102 Mass. 144.

^ Id. page 666. Cases cited in support of the main
case are: Qraff y. Evans, 8Q. B. Div. 878; Selm v.
Sute, 66 Md. 666; Bickart v. People, 79 111. 86, ex-
plained ; Marmont v. State, 48 Ind. 21, distinguished ;
State v. Mercer, 82 Iowa, 406, distinguished; Martin
y. sute, 69 Ala. 84.



UnUtd StaUt Supreme Vowrt, October 22, 1888,

1. Constitutional Lavo — Interstate Commerce —
Licensing Engineers.—Act Ala., June 1, 1887, provid-
ing that engineers and other railroad employees shall
be examined by a medical board, to determine
whether or not they are **color-blind," imposing the
expense thereof on the company employing them, and
making their employment penal unless they have cer-
tificates of fitness, is not repugnant to the power
vested in congress to regulate commerce, as applied
to a railway company having its lines, on which the
engineer runs, in different States.

2. Same—Dtie Process of 2#aw.— Nor does the pro-
vision therein, requiring the company to pay the ex-
amination fees, deprive the company of property
without due process of law, in violation of Const* U.
S., 14th amend.

8. Same— Criminal Law — Place of Trial* — The
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Vol. 28.



proTiflioo of Const. U. 8., art. 8, that trials of all
crimes shall be in the State where committed, applies
only to trials in the federal courts.

Mr. Justice Field, delivered the opinion of the

A statute of Alabama which took effect on the
let of June, 1887, "for the protection of the trav-
eling public against accidents caused by color-
blindness and defective vision," declares that all
persons afflicted with color-blindness and loss of
visual powei, to the extent therein defined, ave
"disqualified from serving on railroad lines within
the State in the capacity of locomotive engineer,
fireman, train conductor, brakeman, station agent,
switchman, flag-man, gate- tender, or signal-man,
or in any other position which requires the use or
discrimination of form or color signals;" and
makes it a misdemeanor, punishable by fine of
not less than ten nor more than fifty dollars for
each offense, for a person to serve in any of the
capacities mentioned without having obtained a
certificate of fitness for his position in accordance
with the provisions of the act. It provides for
the appointment by the governor of a suitable
number of qualified medical men throughout the
State to carry the law into effect, and for the ex-
amination by them of persons to be employed in
any of the capacities mentioned ; prescribes rules
to govern the action of the examiners ; and allows
them a fee of three dollars for the examination
of each person. It declares that re-examinations
shall be made once in every five years, and when-
ever sickness, or fever, or accidents calculated to
affect the visual organs have occurred to the par-
ties, or a majority of the board may direct; that
the examinations and re-examinations shall be
made at the expense of the railroad companies;
and that it shall be a misdemeanor, punishable by
a fine of not less than fifty nor more than five
hundred dollars for each offense, for any such
company to employ a person, in any of the capa-
cities mentioned, who does not possess a certifi-
cate of fitness therefor from the examiners in so
far as color-blindness and the visual organs are
concerned. The defendant, the Nashville, Chat-
tanooga & St. Louis Railway Company, is a cor-
poration created under the laws of Tennessee, and
runs its trains from Nashville, in that State, to
various points in other States; 24 miles of its line
being in Alabama, 2 miles in Georgia, 7 in Ken-
tucky, and 4&4 in Tennessee. On the 2d of
August, 1887, one James Moore was employed by
the company as a train conductor on its road, and
acted in that capacity, in the county of Jackson,
in Alabama, without having obtained a certificate
of his fitness so far as color-blindness and visual
powers were concerned, in accordance with the
law of that State. For this employment the com-
pany was indicted in the circuit court of the State
for Jackson county, under the statute mentioned,
and on its plea of not guilty was convicted, and
fined $50. On appeal to the supreme court of the
State the judgment was affirmed, and to review it
«-ha os^afii ia brou>rht in error to this coi"^

It was contended In the court below, among
other things, that the statute of Alabama was
repugnant to the power vested in congress to reg-
ulate commerce among the States, and that iX
violated the clause of the fifth amendment which
declares that no person shall be deprived of his
property without due process of law. The same
. positions are urged in this court, with the further
position that the statute is in confiict with the
clause in the third article of the constitution
which provides that the trials of all crimes shall
be held in the State where they were committed.
The first question thus presented is covered by the
decision of this court rendered at the last term in
Smith V. Alabama, 124 U. S. 465, 8 S. C. Rep. 564.
In that case the law adjudged to be valid required,
as a condition for a person to act as an engineer
of a railroad train in that State, that he should be
examined as to his qualifications by a board ap-
pointed for tliat purpose, and licensed if satisfied
as to his qualifications, and made it a misde-
meanor for any one to act as engineer who vio-
lated its provisions. The act now under consid-
eration only requires an examination and license
of parties, to be employed on railroads in certain
specific capacities, with reference to one particu-
lar qualification, that relating to his visual organs ;.
but this limitation does not affect the application .
of the decision. If the State could lawfully re-
quire an examination as to the general fitness of a
person to be employed on a railway, it could of
course lawfully require an examination as to hia
fitness in some one particular. Color-blindness
is a defect of a vital character in railway em-
ployees in the various capacities mentioned.
Ready and accurate perception by them of colors,,
and discrimination between them, are essential to
safety of the trains, and of course of the passen-
gers and property they carry. It is generally by
signals of different colors, to each of which a
separate and distinct meaning is attached, that
the movement of trains is directed. Their start-
ing, their stopping, their speed, the c6ndition of
switches, the upproach of other trains, and the
tracks in such case which each should take, are
governed by them. Defects of vision in such
cases on the part of any one employed may lead
to fatal results. Color-blindness, by which i»
meant either an imperfect perception of colors, or
an inability to recognize them at all, or to distin-
guish between colors, or between some of them,
is a defect much more common than is generally
supposed. Medical treatises of recognized merit
on the subject represent, as the result of extended
examinations, that a fraction over 4 per cent, of
males are color-blind. With some the defect is
congential, with others brought on by occupations
in which they have been engaged, or by vicious
habits in the use of liquors or food in which they
have indulged. It presents itself in a great vari-
ety of forms, from an imperfect perception of
colors to absolute inabillity to recognize them at
all. Such being the proportion of males thus af-
fected, it is a oiatter of the greatest importance

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Mo. 3

to safe railroad transportation of persons and
property that strict examination be made as to
the existence of this defect in persons seelcing
employment on railroads in any of the capacities'
mentioned. It is conceded that the power of con-
gress to regulate interstate commerce is plenary;
that, as incident to it, congress may legislate as
to the qaalifications, duties, and liabilities of em- -
ployees and others on railway trains engaged in
that commerce; and that such legislation will
supersede any State action on the subject. But,
until such legislation is had, it is clearly within
the competency of the States to provide against
accidents on trains while withid their limits. In-
deed, it is a principle fully recognized by decis-
ions of State and federal courts that, wherever
there is any business in which, either from the
products created or the instrumentalities used,
there is danger to life or property, it is not only
within the power of the States, but it is among
their plain duties to make provision against ac-
cidents likely to follow in such business, so that
the dangers attending it may be guarded against
so far as is practicable.

In Smith v. Alabama this court, recognizing
previous decisions where it had been held that it
was competent for the State to provide redress for
wrongs done and injuries committed on its citi-
zens by parties engaged in the business of inter-
state commerce, notwithstanding the power of
congress over those subjects, very pertinently in-
quired : **What is there to forbid the State, in the
further exercise of the same jurisdiction, to pre-
scribe the precautions and safeguards foreseen to
be necessary and proper to prevent by anticipa-
tion those wrongs and injuries which, after they
have been inflicted, it is admitted the State has
power to redress and punish? If the State has
I>ower to secure to passengers conveyed by com-
. mon carriers in their vehicles of transportation a
right of action for the recovery of damages oc-
casioned by the negligence of the carrier in not
providing safe and suitable vehicles, or employees
of sufficient skill and knowledge, or in not prop-
erly conducting and managing the act of trans-
portation, why may not the State also impose, on
behalf of the public, as additional means of pre-
vention, penalties for the non-observance of these
precautions? Why may it not define and declare
what particular things shall be done and observed
by such a carrier in order to insure the safety of
the persons and things he carries, or of the per-
sons and property of others liable to be affected
by them ?'^ Of course, but one answer can be
made to these inquiries; for clearly what the
State may punish or afford redress for, when
•done, it may seek by proper precautions in ad-
vance to prevent. And the court in that case held
that the provisions in the statute of Alabama were
not strictly regulations of interstate commerce,
but parts of that body of the local law which
governs the relation between carriers of passeng-

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