If give must be other than a pledge of its own assets. There is no statute requiring the deposits of the county treasurer to be secured by the depository, and there is no express power under which the bank was authorized to secure him by a pledge of its assets; no neces enable it properly to conduct its business as a banking institution; hence, its attempt to do so was an act ultra vires and void. The chancellor erred in holding that it did have such power. ever been suggested that would more equitably and fairly protect the depositors. banks are made to observe strictly the law, and not allowed to divert their assets from their proper and legitimate channel, it will be in rare instances indeed that depositors will feel the need of special security for their funds when placed in banks. Soundsity existed for its doing so, in order to business banking principles demand that no bank should be permitted, under any circumstances, to secure any depositor by a pledge of its assets. But where, by charter provision or statute, a bank is required to secure a state, county, court, or other deposit before it can receive such deposit, the security which the bank gives must be such as it can procure by personal indorsement or otherwise, which does not involve a pledge of its assets. For many years the state officials have placed such a construction upon the law requiring state deposi tors to give security before they can receive any part of the state's money. The assets of these state depositories have never been pledged as security for state deposits, but the state has invariably received as security for its deposits the indorsement of individuals or solvent bonding companies. There is undoubtedly the character of security which the legislature contemplated should be given, when it enacted § 4693, Kentucky Statutes, re Judgment reversed and cause remanded for further proceedings consistent with his opinion. Nunn, J., not sitting. KENTUCKY COURT OF APPEALS. V. re 1. The secretary of a club, who, with the money of a member and at his direction, orders for him intoxicating liquor in another state, does not, in ordering or ceiving it for the owner, violate a statute providing that it shall be unlawful for any person to procure for another intoxicating liquors. Statute construction icating liquor. title intox quiring state depositors to give security for the public funds, and §§ 411 and 2903, requiring depositories for chancery court and city funds to give security for their safekeeping and payment. We are not advised as to the interpretation which court officers and city officials have placed upon the sections of the statutes quoted, but as the giving of personal security for the safety and return of such public deposits as are required by law to be secured would fully meet the ends of the law, and in no wise impair the value of the bank's assets as security for all of its depositors, it is apparent that this is the character of security contemplated. That this was the legislative intent is made the more apparent, when it is remembered that all of the assets of the bank stand pledged to secure all of its deposits, and it cannot be that the legislature intended that this security for all of the deposits should be impaired in order that a few, or any number less than all, might be the better secured. In other words, the legislature evidently did The question of whether one who purnot intend that the security of any deposi-chases or procures liquor for another is or tor should be impaired, in order that that of another might be increased. So the only reasonable construction that can be placed upon these statutes requiring certain public funds to be secured by the depository is that the security that such depository shall Note. Purchasing or procuring liquor for another as a substantive offense. For the applicability of liquor laws to social clubs dispensing liquor to members, see notes to South Shore Country Club v. California Club, 20 L.R.A. (N.S.) 1095; People, 12 L.R.A. (N.S.) 519; Cuzner v. Manning v. Canon City, 23 L.R.A. (N.S.) 192; and Ada County v. Boise Commercial Club, 38 L.R.A. (N.S.) 101. is not a seller of the liquor is treated in the notes to State v. Lynch, 28 L.R.A. (N.S.) 334, and to Reed v. State, 24 L.R.A.(N.S.) 268. The other reported cases of prosecutions for the acts of purchasing or procuring for another intoxicating liquors have generally arisen under statutes prohibit APPEAL by defendant from a judgment | R. Co. v. Sims, 191 U. S. 441, 48 L. ed. of the Circuit Court for Butler County 254, 24 Sup. Ct. Rep. 151. convicting him of selling intoxicating liquors in violation of law. Reversed. The facts are stated in the opinion. Messrs. Nat T. Howard and E. N. Mayhugh for appellant. Messrs. James Garnett, Attorney General, and Charles H. Morris, Assistant Attorney General, for the Commonwealth: Defendant was guilty. Messrs. E. Bradley and W. S. Holmes also for the Commonwealth. Hobson, Ch. J., delivered the opinion of the court: The following act was passed by the last general assembly. An Act Making it Unlawful to Purchase, Procure, or Deliver Spirituous, Vinous, and Malt Liquors in Local Option Territory. Be it enacted by the general assembly of the commonwealth of Kentucky: Lee v. Com. 143 Ky. 356, 136 S. W. 624; George Wiedemann Brewing Co. v. Com. 123 Ky. 559, 96 S. W. 834; Delamater v. South Dakota, 205 U. S. 96-98, 51 L. ed. 727, 728, 27 Sup. Ct. Rep. 447, 10 Ann. Cas. 733; Asher v. Texas, 128 U. S. 129, 1. That it shall be unlawful for any per32 L. ed. 368, 2 Inters. Com. Rep. 241, 9 son, firm, or corporation to purchase or Sup. Ct. Rep. 1; Brennan v. Titusville, 153 procure for another spirituous, vinous, U. S. 289, 38 L. ed. 719, 4 Inters. Com. malt, or other intoxicating liquors, mixRep. 658, 14 Sup. Ct. Rep. 829; Caldwell v. tures, or decoctions either as the agent of North Carolina, 187 U. S. 622, 47 L. ed. the buyer or the agent of the seller of said 336, 23 Sup. Ct. Rep. 229; Norfolk & W. 'liquors, mixtures, or decoctions, either for ing the “giving," "procuring," or "furnish- | making it unlawful for any person "to act ing" such liquors. But there are cases where the law is specifically against such acts. Thus, where the defendant, as the assisting friend of the purchaser, bought liquors for him, it was held that he was guilty under the statute making it an offense for any person to "act as agent or Statutes will not be construed as attackassisting friend of the seller or of the pur-ing acts of purchase as distinguished from chaser in procuring or effecting the unlawful sale or purchase" of liquors. Boyd v. State, 3 Ala. App. 178, 57 So. 1019. So, in Powell v. State, 96 Miss. 608, 51 So. 465, one who, receiving money from the buyer, ordered liquor for and delivered it to him, was held guilty under the statute providing that "if any person shall act as agent or assistant of either the seller or purchaser, in effecting the sale of any liquor," etc., "he shall be guilty," etc. So the buyer's agent who is taking liquor to his principal is guilty of conveying it from one point in the state to another point therein. Huff v. State, Okla. Crim. Rep., 133 Pac. 265. So, one acting as the agent of the purchaser violates the act making it a crime to aid, abet, counsel, or procure an unlawful sale, purchase, or gift, or other unlawful disposition of liquors. Johnson v. State, 172 Ala. 424, 55 So. 226. as agent for the purpose of delivering whisky or other intoxicating drinks to another within the limits of the city," as the intent of the ordinance was to prohibit a citizezn from acting generally as an agent for the buyer. acts of sale of liquor, unless they are .. The reader will understand that it is not here attempted to go into the general meaning of "giving," "procuring," "furnishing," etc., liquor, but simply to deal with the question as to how far those expressions are applicable to one who pur But, where the defendant as the agent of another purchased from a dealer out of the state certain liquor, and afterwards de-chases or procures liquor for another. livered it to his principal in the state, it was held that he did not violate the statute referred to in Boyd v. State, supra, as such sale or purchase was not unlawful. Vernon v. State, 161 Ala. 83, 50 So. 57. See also State v. Whisenant, infra. In Walker v. Dawson. 7 Ga. App. 417, 66 S. E. 984, it was held that the act of the defendant in buying some whisky for several of his neighbors when he bought his own was not a violation of an ordinance "Giving." (For cases on social treating, see the note to People v. Peterson, 21 L.R.A.(N.S.) 134.) An agent who delivers liquor to his principal does not "sell, give away, or otherwise dispose of" such liquor. Maxwell v. State, 140 Ala. 130, 37 So. 266. Thus, where the defendant in the pres or without compensation in any county, | practising physician. 2. Any person, firm, or corporation violating § 1 of this act, or any part thereof, shall be fined not less than $60 or no more than $100, and not less than ten or no more than forty days imprisonment, or both, within the discretion of the court or jury trying the case. Acts 1912, chap. C. E. Martin was arrested under a warrant issued by the county judge charging him with violating the local option statute. On a trial before the county judge he was fined, and took an appeal to the circuit court. In the circuit court a trial by jury was waived, and the case was submitted to the court under the following agreed statement of facts: "It is agreed by and between the commonwealth by attorney and defendant that the following are the facts 3. The provisions of this act shall not in this case: A number of men above the apply to common carriers who in good faith age of twenty-one formulated a club or asdeliver intoxicating liquors, in quantities sociation to be known as the Recreation not to exceed 5 gallons, at one time, to Club, to be located in Morgantown, Butler regular licensed and practising physicians county, Kentucky. That the prosecuting and druggists in local option territory. witness M. and defendant are each memProvided, however, that the provisions of bers of the club. That the club rented a this act shall not apply to such liquors house of Martin, defendant, and employed prescribed on prescription from regular' him as janitor and as secretary of the ence of his principal, who was a slave, It has been held that the offense of "probought liquor with the slave's money, and curing" liquor for another is complete bethen and there handed it to the slave, it fore the delivery to the principal. Jenwas held that he did not give it to him.kins v. State, 82 Miss. 500, 34 So. 217, State v. Hopkins, 49 N. C. (4 Jones, L.) 305. See also to the same effect State v. Wright, 49 N. C. (4 Jones, L.) 308, where it does not appear whether the purchase was in the presence of the principal or not. So, one who procures liquor for a minor, with the minor's own money, does not sell or give liquor to the minor. Bryant v. State, 82 Ala. 51, 2 So. 670. Thus, in Anderson v. State, 82 Ark. 405, 118 Am. St. Rep. 82, 101 S. W. 1152, where one was given money by a minor, and went out of the state and bought whisky with the money, and, bringing it back, delivered it to the minor, it was held that he had not violated the statute which punished "any person who shall sell or give away, either for himself or another, or be interested in the sale or giving away of," liquors to a minor. where a person in the habit of becoming intoxicated gave money to the defendant, who went into another state and bought liquor and returned with it into the state, and was there arrested before he delivered the whisky to his principal, and it was held that he was properly convicted under the statute making it an offense to procure liquor for a person in the habit of becoming intoxicated. Although strictly, perhaps, without the scope of this note, reference should be made in this connection to the North Carolina statute providing that "if any person shall unlawfully procure and deliver any spirituous or male liquors to another, he shall be deemed and held in law to be the agent of the person selling said spirituous and malt liquors, and shall be guilty of a misdemeanor and punished in the discretion of the court." In State v. BurchBut the contrary was held in Com. v. field, 149 N. C. 537, 63 S. E. 89, it was held Davis, 12 Bush, 240, where the court, in that this provision clearly means that such sustaining an indictment for giving spir-person shall be considered as a principal itous liquors to a minor, said: "The ra- and liable criminally as the seller. tional construction of the act is that to furnish or supply spirituous, vinous, or malt liquor to a minor is to give it, within the meaning of the statute; and the fact that it may have been purchased by the defendant, with money furnished in whole or in part by the minor, whereby the liquor became the property of the minor, will not relieve the defendant of guilt." "Procuring." A servant does not "procure" liquor for his master in handing the master his own liquor. MARTIN V. COM. In State v. Whisenant, 149 N. C. 515, 63 S. E. 91, it was held that to bring one who procures whisky for another under this statute, the sale by which it was procured must be illegal, and that this law does not apply to cases where the sale is not illegal, or where the state legislation on the subject cannot apply to and affect the transaction. "Furnishing." Proof that the defendant acted as agent of another in purchasing whisky for his principal will sustain a conviction under a statute against selling, furnishing, and club. That under the rules of the club any, could sell no alcoholic, no difference how member of the club might keep on deposit weak. Martin was employed as secretary any pure food he desired for his own use, which he was not allowed to sell or loan. That the pure food included beer and whisky of the standard approved by the government and as pure food ices; rents, janitor fee, and incidental expenses to be paid out of common fund. The janitor might have on hand cigars, tobacco, lunches, or any drink not containing any alcohol, own and sell same to the members of the club, but giving away intoxicating liquors. State v. Hassett, 64 Vt. 46, 23 Atl. 584. The same was held in Burnett v. State, 92 Ga. 474, 17 S. E. 858, under the statute making it penal to furnish intoxicating liquors to a minor, but the case was reversed on other grounds. In State v. Buck, 37 Vt. 657, it was held that acting as the agent of others in sending for and procuring liquor for them tended to prove a case of furnishing, by buying or transporting it "to be divided among or distributed to others," where the stat ute made it an offense to "furnish" liquor, and defined "furnish" as applying to "all cases where any person shall knowingly bring into or transport within this state, for any other person, intoxicating liquors. intended to be sold or disposed of contrary to the provisions of this chapter, or to be divided among or distributed to others." In People v. Lapham, 162 Mich. 394, 127 N. W. 366, it was held that the defendant was properly convicted of the charge under the statute that he did sell, furnish, and give liquor to a certain person, where, being given money, he went out and brought back liquor and gave it to the persons from whom he got the money; but the court does not state whether the conviction was upon the ground of selling or furnishing. But where the statute was directed the against whomever "in any manner, directly or indirectly, sells, furnishes, or gives away or otherwise deals in any intoxicating li quors as a beverage," it was held that a person in dry territory can receive money from another, and go into wet territory, purchase intoxicating liquors with money, and deliver it to the person who furnishes the money, to be used by him as a beverage, and not be guilty of furnishing as the term is used in the statute, as the statute was directed against dealers, and also for the further reason that one may lawfully do by the agency of another what he may lawfully do himself. State v. Lynch, 81 Ohio St. 336, 28 L.R.A. (N.S.) 334, 90 N. E. 935; State v. Wirick, 81 Ohio St. 343, 90 N. E. 937. and janitor at a fixed salary of $30 per month. The club began operation in June, 1912, and in July, 1912, M., a member of the club, went to the secretary then acting as such, and gave him as such $2.50 and directed him to purchase for him from Cook Brewing Company, Evansville, Indiana, one case of Gold Blume beer-a beer of high grade malt liquor, containing more than 2 per cent alcohol. That Martin reing was for the purpose of a sale where the local option law prevails. "Keeping for" another person. In State v. Burns, 237 Mo. 216, 140 S. sufficient to sustain a conviction for "keepW. 871, it was held that the evidence was ing for" another person, where the defendant bought liquor for others with their money, and, before he had delivered it to under the statute in that he did wilfully them, was arrested, and he was indicted and unlawfully order for, receive, keep, store, and deliver the liquor for a certain person. For cases upon the constitutionality of the form of the statute, see State v. Rawlings, 232 Mo. 544, 134 S. W. 530; State v. Price, 229 Mo. 670, 129 S. W. 650. Statute construed as limited to carriers. In State v. Wignall, 150 Iowa, 650, 34 L.R.A. (N.S.) 507, 128 N. W. 935, it was held that one who, without consideration, but merely as an act of accommodation to the buyer, conveys liquor from the carrier's station to the buyer's residence, is not within the operation of a statute imposing a penalty on "any express or railway company or any common carrier or person, or any one as the agent or employee thereof." who transports or conveys to any person within the state intoxicating liquor, as the statute should be construed as limited to B. B. B. In Partin v. Com. 140 Ky. 146, 130 S. W. 968, it was held that under the statute "making it unlawful for any person to sell. give, procure for, or furnish to another any spirituous, vinous, or malt liquors for the purpose of selling them in any territory where the local option law prevails, it must be charged and shown that the furnish-carriers. ceived the money as secretary of the club, right of a person to serve wine or other sent the order as such to the Cook Brewing intoxicants at a meal or in any other way Company, Evansville, Indiana, and same was to give to another spirituous, vinous, or received by them there and a case of Gold malt liquors which are his own property; Blume beer shipped to 'Recreation Club,' and what a person may do himself he may Morgantown, Kentucky, and C. W. Hill, do by his servant. The servant who serves agent for transportation company, delivered to the guests wine at a banquet given by same at the rooms of the Recreation Club, his master commits no offense under the and C. E. Martin receipted for same. It act, which was not intended to interfere was by Martin put on ice, and a book con- with domestic arrangements of this sort. taining 48 tickets numbered from 1 to 48 consecutively was delivered to M., witness, and he called at the club room, and when he would get a bottle of beer would tear off and deliver to Martin one deposit ticket for each bottle taken. That this was all the books he kept between the parties relative to liquor deposited and here complained of, and under these rules the case of beer here complained of was disposed of by M., witness, and Martin. That the law known as the general local option law was then in full force and effect in Butler county, Kentucky. The money was sent to Evansville, Indiana, and goods billed to club there. The $2.50 was the wholesale price and amount sent to brewing company." On these facts the circuit court held the defendant guilty as charged and fixed his fine at $60. He appeals. While the state of Kentucky may make it unlawful for any person to purchase or procure for another spirituous, vinous, or malt liquors as the agent of the buyer or as the agent of the seller, it may not interfere with interstate commerce. In Robbins v. Taxing Dist. 120 U. S. 489, 30 L. ed. 694, 1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592, a drummer was fined under the laws of Tennessee for offering his goods for sale in that state without license. He was taking orders to be sent to Cincinnati and there filled. It was held that the state statute interfered with interstate commerce and was void. This case was followed in Asher v. Texas, 128 U. S. 129, 32 L. ed. 368, 2 Inters. Com. Rep. 241, 9 Sup. Ct. Rep. 1; Brennan v. Titusville, 153 U. S. 289, 38 L. ed. 719, 4 Inters. Com. Rep. 658, 14 Sup. Ct. Rep. 829; Caldwell v. North Carolina, 187 U. S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep. 229; Norfolk & W. R. Co. v. Sims, 191 U. S. 441, 48 L. ed. 254, 24 Sup. Ct. Rep. 151, and many other cases. It is true that in this case Martin was not the agent of the nonresident brewing com. pany, the seller of the beer, but he was the agent of the resident purchaser. the state is without power to punish the agent of the seller, because it is an interference with interstate commerce, it is equally without power to punish the agent of the buyer, for this would be equally an. interference with interstate commerce. In the cases above cited the Supreme Court of the United States distinctly holds that under the Constitution the power to regulate interstate commerce is vested alone in Congress, and that the states are without If It was held in South v. Com. 79 Ky. 493, that a person is not guilty under the local option law who simply buys whisky for another for accommodation, having no interest in the whisky, and making no profit from the sale. This ruling has been followed in many subsequent cases. Caudill v. Com. 140 Ky. 556, 131 S. W. 386; Lee v. Com. 143 Ky. 355, 136 S. W. 624, and cases cited. It became very common in local option territory for persons not knowing how to get whisky to procure some friend to get it for them, and this led to many persons who were in fact selling whisky, using that pretext as a defense when charged with violating the law. The primary purpose of the act above quoted was to reach this class of persons. It makes it unlawful for any person to purchase or procure for another any intoxicants, either as the agent of the buy-power in any wise to interfere with it. If er or the agent of the seller, either for or without compensation, and changes the rule which this court laid down in the cases above referred to. We also held, under the original act, that a gift of intoxicants in local option districts is not prohibited. Hoskins v. Com. 31 Ky. L. Rep. 309, 102 S. W. 277; Com. v. Abbott, 147 Ky. 686, 145 S. W. 373. The statute above quoted was not intended to change this rule. It punishes only the persons who purchase or procure for another intoxicants, either as the agent of the buyer or the agent of the seller. The act does not interfere with the the state could punish the agent of the buyer, it could in like manner punish the buyer himself. That commerce may be carried on, there must be both a seller and a buyer, and to punish either for what is done in interstate commerce is certainly an inWe terference with interstate commerce. therefore conclude that our statute above quoted is inapplicable as to all interstate commerce transactions, and that Martin cannot be punished for anything that he did before the interstate commerce transaction was completed. The interstate commerce transaction be |