52 A. 447 | N.H. | 1902
"The statute making penal the solicitation or taking of orders in this state for the delivery of liquors in another state, with knowledge or reasonable cause to believe they are to be brought here and sold in violation of law, was intended to have and has had the effect to prevent, or to discourage and restrict, commerce in liquors between citizens of this and other states. Jones v. Surprise,
The practical effect of this decision was to make the sale of intoxicating liquors, imported into the state in the original packages, legal; in other words, the state laws prohibiting the sale and the keeping for sale of such property by the importer did not apply, because congress had not signified its permission that they might apply. An easy way was thus suggested by which intoxicating liquors could be sold in defiance of state legislation to the contrary. In consequence of this result, congress promptly passed (August 8, 1890) what is known as the "Wilson act," which provided "that all fermented, distilled, or other intoxicating liquors or liquids transported into any state or territory or remaining therein for use, consumption, sale, or storage therein, shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise." *352
This statute did not apply to the case of Durkee v. Moses, for the reason that the cause of action in that case arose before the statute was enacted; and the question presented in this case is whether the Wilson act so far modified the law as announced in Leisy v. Hardin, as to make valid the statute of this state, which is relied upon by the defendant and which was declared void in Durkee v. Moses. By the statute in question (P. S., c. 112, s. 19), "any person" is liable to fine and imprisonment who "shall within this state solicit or take any order for spirituous liquor to be delivered at any place without this state, knowing or having reasonable cause to believe that if so delivered the same will be transported to this state and be sold in violation of the laws thereof." If this statute has been revived by the act of congress so as to apply to the facts of this case, the plaintiffs cannot recover; otherwise they are entitled to judgment.
In Rhodes v. Iowa,
In In re Rahrer,
In Ex parte Loeb, 72 Fed. Rep. 657, decided in 1896, it was held that intoxicating liquors are a legitimate subject of commerce, and burdens upon interstate commerce therein cannot be justified under the police power of the state; and that the negotiations of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce, and a state statute which attempts to prohibit the solicitation within the state of orders for such goods, though their sale within the state is prohibited by an exercise of the police power, is a burden upon interstate commerce and is void. It is there said (p. 660): "The Wilson act itself does not relax the interstate commerce law with regard to intoxicating liquors until their arrival within the state, thus recognizing them as an article of commerce, legitimate until operated upon after arrival by the police power."
In view of these authorities, as well as of the internal evidence disclosed by an examination of the Wilson act, no reasonable doubt remains that this case must be governed by the decision in Durkee v. Moses. To hold that the agent committed a crime in soliciting the orders for the sale of spirituous liquors at that time in the state of Ohio, where the sale was legal, and that therefore the vendor cannot recover therefor, would be an unwarranted interference with interstate commerce which finds no justification in state legislation.
Judgment for the plaintiffs.
All concurred.