he will be required to meet. And the court will limit the government in its evidence to those facts set forth in the bill of particulars. In this case it was apparent from the general terms of the indictment, and the defendant being a corporation or joint-stock association, and from the crime charged, although the indictment was sufficient in law, that a bill of particulars ought to be filed; and, the demurrer going to both the indictment and the bill of particulars, and being so treated by counsel on both sides, the court will so regard it; because, if the facts so recited do not constitute a crime, there is no good purpose served in impaneling a jury and calling many witnesses from a distance, and then being compelled to direct a verdict for the defendant. Not because the law exacts it, but for the reasons stated, and none other, I will consider the case as if the indictment contained a recital of all the facts set forth in the bill of particulars.

The Dallas Company sells intoxicating liquors, a fact known by defendant. The Dallas Company, through an agent in Iowa, takes orders from Iowa parties for liquors. The Dallas Company hands the liquors over to defendant in Illinois for two or more purposes, the one being to carry them to the consignee in Iowa. The defendant is to first carry them to a point on its own line in Iowa, where the consignee resides. Then, before turning them over to the consignee, it must collect from him the selling price. Then the consignee takes the liquors from defendant, and the defendant carries the money back to Illinois, and turns it over to the Dallas Company. Is the defendant thereby, in Iowa, engaged in the business of a liquor dealer? This court having no jurisdiction for crimes committed in Illinois, it is not material what was done in that state, excepting as such acts throw light on and are connected with the transactions within this district; and I fail to note the importance of the allegations that no bills nor invoices accompanied the shipment. And I likewise fail to appreciate any force in the argument of defendant's counsel that the "commerce clause" of the constitution in any way controls this case, and I need only state what the leading cases hold. Leisey v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, held a state statute as void which require the shipment of liquors in the original package to a point within the state from a point without the state, and which liquors must be accompanied with a certificate from the local authorities that the liquors were to be sold only for certain purposes other than for a beverage; and the statute was held to be void because of the "commerce clause." Bowman v. Railroad Co., 125 U. S. 465, 8 Sup. Ct. 689, 31 L. Ed. 700, is in so far like the Leisey Case as that the only question was with reference to a state statute attempting to regulate and place conditions and burdens on commerce between the states. In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572, held that liquors brought from without to within the state should be within the provisions of the statute of the state because of a federal statute, and that such federal statute is a constitutional exercise of the power vested in congress. Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088, held that the statute of the state, supplemented by the federal statute, making the state statute operative after the liquors once arrived within the state, could not apply to liquors in transit and before de

livery to the consignee. These, and none of the other, cases under the "commerce clause,' call for any review. Congress, and congress alone, has the power to regulate commerce between the states. When a state undertakes to regulate such commerce, however artful or disguised the form, such attempted regulation by the state is null and void. But while congress has the one power of regulating commerce between states, it also has another power of imposing an internal revenue tax on all agencies doing a business. And an agency, person, or corporation doing an interstate business can no more escape such internal revenue tax than can an agency, person, or corporation doing a business wholly within one state. There is nothing in the proposition. At least it is so plain to me that there is not that I do not care to pursue the question farther.

The only question, in my judgment, is, where and by whom were the liquors sold? If in Illinois, this court is without jurisdiction. If sold by the Dallas Company in Iowa, then the grand jury has made a mistake in naming a defendant in the indictment. Did the Adams Express Company carry on the business of a liquor dealer in Iowa? From the bill of particulars it is apparent that the principal business of the defendant is that of a common carrier, and as such it must receive, carry, and deliver to the consignee all merchandise offered to it by any and all persons within a reasonable time, for a reasonable compensation. It may exact the carrying charges in advance, or it may waive prepayment of such charges, in which event it has and retains a lien on such merchandise for the carrying charges, the payment of which by the consignee removes the lien. And it is within the knowledge of all men that such common carriers do a per cent. of their business by carrying goods, not only collecting its own carrying charges from consignees, but likewise collecting from the consignees the selling prices for the merchandise, and carrying such moneys back to the consignors. That is part of such carriers' business, and, generally speaking, it is lawful, and both stimulates and facilitates trade. And in all such cases, including the case at bar, the carrier has no interest nor profit in the transaction other than as carrier. It receives no percentage, nor share, nor profit from the sale of the liquor. The title to the liquors did not pass from the Dallas Company when the orders were taken by the agent. The company could ignore the orders, and refuse to ratify the act of the agent, for any reason, good or otherwise. Did the title pass from the Dallas Company to the consignees when the liquors, properly addressed, were deposited in the office of the defendant at Dallas, Ill., with directions to defendant to carry them to Iowa, and deliver them to the consignees, after first collecting the selling price? I believe, and so hold, that the title did then and there pass; and also hold that, the title thus passing, that it is decisive of this case against the government. That the authorities are in irreconcilable conflict is beyond question. But that the great weight of authority sustains the above holding is equally true. Indeed, counsel for the government concede this to be so as to the appellate state court decisions; and in making such concession they recognize the force of the many cases. The Iowa supreme court has many times so decided on this and kindred questions. Brown v. Wieland (Iowa) 89

N. W. 17, with cases cited by Judge McClain. In State v. Hanaphy (Iowa) 90 N. W. 601, in an opinion by Judge Weaver, it was held that the agent who took the order in Iowa did not make the sale. It is true that the Iowa court, in the recent case of State v. Express Co. (decided in October, 1902) 92 N. W. 66, seems to hold otherwise. But the opinion in that case is a per curiam opinion, and is grounded only on the prior decision of State v. Express Co., 70 Iowa, 271, 30 N. W. 568. While the opinion in 70 Iowa, 271, 30 N. W. 568, was written by an eminent judge, yet it will be seen that the question is not elaborately discussed, and no attempt is made to support it by authority. And in the more recent case, above cited, the court says:

"A majority of the court, as now constituted, would be inclined to the view that under such a shipment the carrier is the agent of the buyer for the purpose of transportation, and of the seller for the purpose of retention of possession and collection of purchase price, and that, as a necessary corollary, title passed to the buyer on delivery to the carrier."

I quote this to show that the Iowa supreme court only decided the case as it did because of stare decisis, and to present a statement of that court, which seems to me to not only be correct, but one supported by the authorities. For the cases holding as I do, see the following: Pilgren v. State, 71 Ala. 368; State v. Flanagan, 38 W. Va. 53, 17 S. E. 792, 22 L. R. A. 430, 45 Am. St. Rep. 832; Com. v. Fleming, 130 Pa. 138, 18 Atl. 622, 5 L. R. A. 470, 17 Am. St. Rep. 763; Higgins v. Murray, 73 N. Y. 252; State v. Peters, 91 Me. 31, 39 Atl. 342; Village of Coffeen v. Huber, 78 Ill. App. 455; Railroad Co. v. Barnes, 104 N. C. 25, 10 S. E. 83, 5 L. R. A. 611; State v. Carl, 43 Ark. 353, 51 Am. Rep. 565; Wheelhous v. Parr, 141 Mass. 593, 6 N. E. 787; Benj. Sales (1888 Ed.) p. 335. Also see the many cases cited in the above.

But counsel for the government contend that the weight of the cases in the United States courts is to the contrary. That might be so, and still 1 could well decline to follow them. The pertinent question is, has the supreme court or court of appeals for this circuit so held? O'Niell v. Vermont, 144 U. S. 323, 12 Sup. Ct. 693, 36 L. Ed. 450, is cited. That case is generally cited on matters of commerce, and it seems to be quite generally misunderstood. What was decided in that case, and all that was decided, was that that court was without jurisdiction. It was a writ of error to the supreme court of Vermont; and the supreme court was without jurisdiction because, only, that, as appeared from the record, a federal question was not presented to the Vermont trial court. On that question the case is an authority, and on no other question. The same case, as reported in 58 Vt. 140, 2 Atl. 586, 56 Am. Rep. 557, is in line with the contention of counsel for the government. That Austin v. Tennessee, 179 U. S. 387, 21 Sup. Ct. 132, 45 L. Ed. 224, is not in point need only be stated. What that court decided was that certain packages of cigarettes were subject to the police power of the state as expressed by legislation.

I can serve no purpose, either to the parties or to counsel in this case, by reviewing the cases cited in the brief in this case, but I will briefly refer to some of them. One case holds that the consignee cannot maintain replevin for the goods as against the carrier until he

pays the C. O. D. and the collection charges. Other cases hold that, if the sale of goods is on condition, the vendor can retake the property if the condition is not performed. Other cases hold that, if the consignee by fraud gets possession, the vendor can retake them. All of such cases are in harmony with, and some of them so hold, that the consignor does not retain the title, but does retain a lien until the goods are paid for. But such cases are not in point. Stevens v. Ohio (C. C.) 93 Fed. 793, is of no value in this case, for the reason that the consignor in West Virginia shipped the liquors to the agent of the consignor in Ohio, who then carried them personally to the consignee. The case of U. S. v. Chevalier, 107 Fed. 434, 46 C. C. A. 402, is relied on. There the defendant kept his principal place of business in California. He had a branch house in Oregon, with his name over the door, managed by an agent. The branch house took orders for liquors, and sent the orders to the main office in California, and from there the liquors were sent by a carrier to the purchasers in Oregon. The defendant had paid his government tax in California. Held, that he was not liable for the tax in Oregon. So that case in no wise sustains the contention of the government in the case at bar. The opinion does recite:

"A different case would have been presented if it had been shown that, instead of sending goods to the purchasers by a common carrier, the freight to be paid by the purchasers, the vendor had paid the freight charges, or had sent the goods by express, to be paid for on delivery from the express company; or had consigned them to his agent, to be by him delivered to the purchasers."

And cases are cited. But it also was said in the opinion:

"The current of authority is that, even in a case where the sale is made by the owner of the goods in person at a place other than that in which the goods are situated, the sale is not completed until the property is actually separated from the stock in the store, and delivered to the carrier, and that the place of such delivery is the place of sale."

That the case of U. S. v. Shriver (D. C.) 23 Fed. 134, by the district judge of the Southern district of Illinois, sustains the government, is conceded. But that the weight of authority, both state and federal, is to the effect that the title passes to the consignee when the goods are delivered to the carrier, I have no doubt. And that the fact that the goods are carried C. O. D. does not change the rule I am equally clear. And, this being so, the liquors in question were sold in Dallas, Ill.; and, the sales having been made there, there is no pretense that the liquors in question were again sold by any one.

The express company was the agent of the vendees in carrying the liquors, and the agent of the vendors in collecting and returning the money; and, as the express company did not sell the liquors, it was not engaged in the business of a liquor dealer.

In re HARE.

(District Court, N. D. New York. December 26, 1902.)

No. 1,018.

1. BANKRUPTCY-TRUSTEE-APPOINTMENT-DISAPPROVAL OF REFEREE. Bankr. Act, c. 5, § 44 [U. S. Comp. St. 1901, p. 3438], provides that the creditors of a bankrupt estate shall at their first meeting after the adjudication, or after a vacancy has occurred in the office of trustee, appoint a trustee, and if they do not the court shall do so. General Order 13 (32 C. C. A. xvii, 89 Fed. vii) makes the appointment by the creditors subject to the approval of the referee or judge, but enacts that he shall be removable by the judge only. By Bankr. Act, § 1, subd. 16 [U. S. Comp. St. 1901, p. 3419], the term "judge" does not include "referee." Held, that a referee could not ignore the appointment of a trustee by creditors, and appoint another, but, if he disapproved, it was his duty to make an order in writing, and on this the parties had a right to be heard before the judge.

2. SAME-POWER OF REFEREE.

It is further provided by Bankr. Act, § 2, subd. 17 [U. S. Comp. St. 1901, p. 3421], that courts of bankruptcy have power, pursuant to the recommendation of creditors, or when they neglect to recommend the appointment of trustees, to appoint trustees, and upon complaints of creditors remove trustees for cause on hearing and after notice to them. Held, that this conferred no power to disregard the recommendation of creditors, and did not authorize the act of the referee.

8. SAME.

Assuming that there is a vacancy in the office of trustee on account of the disapproval of the referee, the court or referee could appoint another only after failure by the creditors to appoint after a full opportunity.

This is an appeal from an order of a referee in bankruptcy appointing one Eugene M. Perry trustee of the estate of the bankrupt, William A. Hare.

William A. Hare having been adjudged a bankrupt herein, the matter was duly referred to a referee for further proceedings under and pursuant to the provisions of the bankrupt act [U. S. Comp. St. 1901, p. 3418]. The first meeting of creditors was held May 19, 1902. The bankrupt appeared in person and by M. H. Kiley, his attorney. Geo. E. Dennison appeared for 18 creditors of said bankrupt, whose aggregated proved claims amounted to $1,189.50. Other claims of other creditors, amounting in all to $1,285.32, were filed, but these creditors were not represented by attorney, nor did they, or any of them, appear in person or vote for trustee. Said Dennison filed powers of attorney in due form, executed by the creditors represented by him, authorizing him to vote for a trustee. Several creditors residing in and about Georgetown, N. Y., filed requests that one Eugene Perry be appointed trustee. The bankrupt drew one of these requests. At the proper time Mr. Dennison, representing said creditors, and by virtue of said power of attorney, voted for one F. E. Richardson as trustee, and, no vote being cast for any other person, Mr. Richardson was duly elected or chosen trustee herein. The bankrupt and Perry resided at Georgetown, while Richardson resided at Cazenovia, 15 miles from Georgetown, at which place the property of the bankrupt, a small stock of goods usual to a country store, was located. The return of the referee, giving the proceedings subsequent to the appointment by creditors, says: "I held the question as to who should be appointed trustee open until after the recess for dinner, and during such recess the bankrupt reported to me that the said William B. Crouse had proposed to him that, in case he could obtain the appointment of his man for trustee, he would purchase the goods for as low a price as possible, and turn them over to any person the bankrupt might request at the price he paid, provided the demand of C. B. Crouse & Co. be paid in full. Mr. Richardson, as appeared, was a large customer of C.