that one of these institutions was located about fourteen miles from the city and the other four or five miles, and, having a great many calls to remove dead bodies from these places, he purchaser an auto vehicle for use in this class of work alone. That he had never used an auto vehicle of any kind in connection with the funeral of any person except the charity or pauper patients who died at these institutions. That the vehicle he used in this line of his business could not be fairly called a hearse but would rather come under the description of a wagon, which took the place of the wagon or vehicle he had formely used.

He further testified that he did not regard the transportation of the inmates of these institutions to the places of burial or to the medical hospitals where the bodies were sometimes disposed of, as being a funeral in the generally accepted meaning of the word or in the meaning of the word as used in the resolution.

He further testified that membership in the Association, aside from the property right growing out of the membership fee, was valuable in the dealings of the members with the National Casket Company, a large concern engaged in the business of furnishing coffins and undertakers' supplies. That this company had some kind of an arrangement with the Undertakers' Association by which it would not furnish expeditiously, or in the ordinary course of business, undertakers' supplies to undertakers who were not members of the Association, or, if it did furnish them, it would do so rather reluctantly and place in the way of the order as many little obstructions as it could do consistently with its ostensible purpose to treat all undertakers alike whether they belonged to the Association or not.

Pearson, the president of the Association, the only witness in its behalf, said in substance that the cost of of motor funeral vehicles was very high and that only a few members of the Association could afford to buy or use them in their business, and the resolution was adopted to prevent members who might be able to buy these high price vehicles from purchasing them and thereby injuring the business of other members of the Association who could not afford to purchase these expensive vehicles. He further said that he and perhaps one or two other members of the Association had regular passenger automobiles that they used in making what are termed first calls on funeral occasions, but that no

member, except Bax, had ever used one in the carriage of dead bodies or for any funeral purpose.

He also insisted that the use to which Bax was putting this motor vehicle was a funeral purpose within the meaning of the resolution and that the example of Bax would probably have the effect of inducing other members of the Association to purchase motor vehicles for use in funeral services, and thereby the entire purpose of the resolution would be frustrated.

He further said in speaking of the use to which ap pellee put the motor vehicle purchased by him in the transportation of dead bodies from the charitable institutions, that the main object of their removal from the institutions was to deliver them to some of the medical universities. That none of the bodies that he moved were hauled to any graveyard or buried or anything else. "There is no funeral connection with it whatever."

The chancellor, in granting to appellee the relief prayed for, expressed the opinion that the use to which appellee was putting the motor vehicle objected to by the Association was not a funeral purpose within the meaning of the resolution, and we are disposed to agree with this view of the matter. This conclusion makes it unnecessary to go into the question of the reasonableness of the resolution or the right of the Association to suspend or expel a member for disobedience of it.

Of

While the removal of bodies of pauper patients from charitable institutions to a place of burial or to some medical school might, in a broad sense of the word, be termed a funeral, as it involves the disposition of dead bodies, we do not think the use of the words "funeral purposes" in the resolution contemplated funerals such as those in which Bax used this motor vehicle. course the burial of the poor, when the obsequies are attended by their families or friends or acquaintances, however few the number or humble the equipage, is as much a funeral as if the interment was attended with all the pomp and ceremony that accompanies the burial of the rich. But it seems obvious that in the adoption of this resolution the Association had in mind a funeral, whether of rich or poor, attended by the conditions usually incident to the burial of the deed, in a cemetery or graveyard, in the presence of the family or friends or acquaintances of the deceased, and not the disposal made

of the bodies of the unfortunate paupers who die in charitable institutions and are carried to some medical institution or pauper graveyard without the presence of family or friends.

The judgment is affirmed.

Adams Express Company v. Commonwealth.

(Decided June 17, 1913.)

Appeal from Whitley Circuit Court.

1. Intoxicating Liquors-Unlawful for Carrier to Deliver Intrastate Shipment in Local Option Territory.-A carrier that brings into or delivers in local option territory intoxicating liquor as an intrastate shipment violates section 2569-a of the Kentucky Statutes, and may be punished thereunder.

2. Intoxicating Liquors-When Unlawful for Carrier to Deliver as an Interstate Shipment in Local Option Territory.-Since the enactment of the Congressional legislation known as the WebbKenyon law, a carrier that brings into and delivers in local option territory an interstate shipment of liquor may be punished under section 2569-a of the Kentucky Statutes, if the whiskey is intended by any person interested therein, to be received, possessed, sold or in any manner used in violation of the law in force at the place of delivery, but if the liquor was not intended to be so used, then the carrier cannot be punished.

3. Intoxicating Liquors-Webb-Kenyon Law-Purpose and Effect of. -The purpose of the Act of Congress known as the Webb-Kenyon Law was to withdraw from interstate shipments of liquor the protection theretofore afforded by the commerce clause of the Federal Constitution as to such shipments of whiskey as are intended by any person interested therein to be received, possessed, sold or in any manner used in violation of the law at the place where it is delivered to the consignee. But if the liquor is not intended to be so received, possessed or used, then the WebbKenyon Law is not applicable to the transaction and the carrier will be protected by the commerce clause.

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5.

Intoxicating Liquors-When Carrier of Interstate Shipment Protected by Commerce Clause of Federal Constitution. A carrier of interstate shipment of intoxicating liquor cannot be punished under any statute of the state unless the liquor was intended to be received or used in violation of some law of the State in force at the place of delivery.

Intoxicating Liquors-Personal Use or Possession for Such Use Not Unlawful.-It is not unlawful for a person to purchase for his own use, at places where it may be lawfully sold, intoxicating liquor, or have such liquor in his possession for such use, and a

6.

7.

carrier who delivers to a person for his personal use an interstate shipment of liquor that was purchased at the place of shipment does not violate any law of this State.

Intoxicating Liquors-Indictments Against Carrier for Delivering in Violation of Law.-If the state law prohibits the thing the carrier has done, the indictment should charge in appropriate words a violation of the state law under which the prosecution is instituted, and then if the Webb-Kenyon Act is applicable to the transaction when treated as an interstate shipment, a conviction may be had upon sufficient evidence that the state law has been violated.

Intoxicating Liquors-Validity of Section 2569-a of Kentucky Statutes. This section is valid in every state of case when applied to intrastate shipments, but is invalid when applied to interstate shipments, unless the interstate shipment is intended to be received or used in violation of some law of the state.

LAWRENCE MAXWELL, JOSEPH S. GRAYDON and TYE & SILER for appellant.

JAMES GARNETT, Attorney General, JOSEPH B. SNYDER, Commonwealth's Attorney and J. C. BIRD, County Attorney for appel

lee.

OPINION OF THE COURT BY JUDGE CARROLL-Reversing.

Several separate indictments were returned in the Whitley Circuit Court against the Adams Express Company, a common carrier of goods, charging it with the offense of bringing into local option territory, in Whitley County, intoxicating liquor, and delivering the same in such territory to the persons named in the indictments as the consignees, one of these persons being Jim Prewitt. The indictments were found under section 2569a of the Kentucky Statutes, providing in part that:

"It shall be unlawful for any person or persons, individual or corporation, public or private carrier to bring into, transfer to other person or persons, corporations, carrier or agent, deliver or distribute, in any county, district, precinct, town or city, where the sale of intoxicating liquors has been prohibited, or may be prohibited, whether by special act of the General Assembly, or by vote of the people under the local option law, any spirituous, vinous, malt or other intoxicating liquor, regardless of the name by which it may be called; and this act shall apply to all packages of such intoxicating liquors whether broken or unbroken.

"Provided individuals may bring into such district, upon their person or as their personal baggage, and for

their private use, such liquors in quantity not to exceed one gallon. And provided, the provisions of this act shall not apply to licensed physicians or druggists, to whom any public carrier may deliver such goods, in unbroken packages, in quantity not to exceed five gallons at any one time."

An agreed state of facts was made up between the Commonwealth and the Express Company, in which it was stipulated in substance that the intoxicating liquor that the Express Company, a common carrier, was indicted for carrying into and delivering in local option territory in this state, was carried by it in the usual course of business from a point in the state of Tennessee, at which place it was received by the carrier for shipment to the consignees. It was further stipulated that the liquor had theretofore been purchased by the consignees at the place in Tennessee from which it was shipped, and the purchase price had been paid by the consignees to the seller and consignor of the liquor at his place of business in Tennessee before the liquor was delivered to the carrier. It was further stipulated that the liquor was delivered by the carrier in local option territory to the persons named as consignees, who were the same persons who had purchased and paid the seller for the liquor in the state of Tennessee before it was delivered by the seller to the carrier for shipment to the consignees who had so purchased it; and that the shipments took place after the Act of Congress known as the Webb-Kenyon Law had gone into effect.

And it was further stipulated that "said liquors were intended by said consignees, respectively, for their personal use, and were so used by them,and were not intended by them to be sold contrary to law, and were not so sold by them. That said consignees, being the persons named as witnesses in said indictments, were not at the times referred to in this stipulation either druggists or physicians.”

Upon this agreed state of facts, the trial court, after refusing the request of the defendant to direct a verdict in its favor, instructed the jury in substance that at the times mentioned in the agreed state of facts Whitley County was what is commonly known as local option territory, and it was unlawful to sell, give or procure for or furnish to another any spirituous, vinous or malt liquors therein, and if they believed from the evidence that the defendant, Adams Express Company, as a com