4 Ga. App. 588 | Ga. Ct. App. | 1908
The plaintiffs in error were accused in two presentments, which are practically identical. Demurrers were filed in both cases, and the plaintiffs in error except to the judgment of the superior court overruling their demurrers. As the same points-are presented in both bills of exceptions, they will be considered together.
The defendants in the court below were accused of the violation of §428 of the Penal Code, which forbids the solicitation or taking-of orders for intoxicating liquors in any county in this State where-tile sale of such liquors is prohibited by law, high license or otherwise. Each presentment contains two counts, charging the offense of misdemeanor. We quote so much of each count as is material. In the first count it is alleged, that the defendants, in Bartow county, unlawfully did “solicit personally and by agent the sale of spirituous, malt, and intoxicating liquors in said county of Bartow', where the sale of said liquors is prohibited by law', high license and otherwise, . . and soliciting being made by and through the United States mail, by mailing letters to citizens of Bartow county from the city of Chattanooga, Tennessee, containing self-addressed envelopes, order blanks, and other printed and written matter soliciting the sale of said liquors, said letters having been mailed and delivered to W. A. Cleveland and I. W. Alley in Bartow county, and other citizens of Bartow county w'hose names, to the grand jurors are unknown.” In the. second count of the-presentment it is alleged that the defendants were guilty of the-offense of misdemeanor, for the reason that they did “solicit personally and by agent the sale of spirituous, malt, and intoxicating liquors in said county of Bartow, where the sale of said liquors is.
The defendants demurred to the presentments, upon the following grounds: (1) That the indictment set forth no offense under the laws of Georgia; that it is not a crime under the laws of the State of Georgia to solicit the sale of intoxicating liquors not personally or by agent, but through the United States mail from a point without to a point within the State. (2) That the indictment shows on its face that the defendants are prosecuting a legal business, are not violating any penal law of the State of Georgia, have done no act in the county of Bartow, State of Georgia, either personally or by agent,, but that they only mailed certain documents, therein mentioned, in the State of Tennessee; which is not a crime under the laws of the State of Georgia. (3) That the indictment shows upon its face that the defendants are engaged in an interstate business not prohibited by the constitution or laws of the United States, and not subject to be interfered with by the laws of Georgia. (4) That the indictment shows upon its face that the defendants are using the United States mails for legal ends and the conduct of a legal business, and it is incidental to .interstate commerce. (5) That the indictment shows upon its face that the defendants are not guilty of any crime or penal offense, in that soliciting, through the United States mail, orders for the sale of liquors in Bartow county, Georgia, to be shipped from Chattanooga, in the State of Tennessee, is a lawful use of the United States mails, and is incidental to interstate commerce, namely, the sale and shipment from the State of Tennessee into the State of Georgia. (6) That if the laws of Georgia undertake to make criminal the solicitation of the sale 'of liquors by mailing letters from without the State to persons within the Stare,
Other than the one last stated (and which will be last considered) the demurrers raise three main points: (1) That the solicitation of orders for whisky by mail is not forbidden by the terms of §428 of the Penal Code, for the reason that to solicit by mail can not be to solicit “personally” and is not included in that term.
(2) That even if such solicitation be a violation of the law when the point from which the letter is sent and the point where the letter is received are both within the same State, yet the statute is without effect where the letter is sent from another State, because to give the law effect would be to interfere with interstate commerce and an incident to interstate commerce, as well as to interfere with the power of Congress to control the postal service.
(3) That if it be held that the solicitation of sales of liquor by mail from without the State to a person within the State comes within the provision of §428 of the Penal Code when the liquor to be sold is to be shipped from without the State to persons within the State, then §428 of the Penal Codeáis void, as contravening the power of Congress to regulate -commerce among the several States.
The questions raised by this record present issues of the highest importance to the people of this State, as well as of the gravest legal import. It is clear, upon the one hand, that the intention of the General Assembly, in the passage of the general prohibition .act of 1907 (Acts of 1907, p. 93), will be largely frustrated and brought to naught if it be held that liquor dealers have only to establish themselves beyond the borders of this State and carry on a mail-order business, in which their stock of goods is without the State, instead of within its borders. Upon the other hand, if the sale of intoxicating liquors comes within tire same category as other objects of interstate commerce, or if it is so 'held by the Federal courts, no State can prevent this.
The growth of the conviction that total prohibition was the best regulation of intoxicating liquor was gradual in this State. Prior to the passage of the local-option act, numerous counties had, by local laws, some directly, and others by high license, prohibitory in amount, abolished the. sale of intoxicating liquors within their borders. By the passage of the act which prohibited the manufacture, sale, barter’, giving away to induce trade, etc., of any alcoholic, malt, spirituous or intoxicating liquors, approved August 6, 1907, the legislature of Georgia intended, as a matter of police regulation, to prohibit the sale of all intoxicants in this State. Every device by which the unlawful use of liquors in this State could be supplied, which was suggested to legislative ingenuity, is guarded against in the act last above referred to. It can not be conceived that fhe legislative contemplation extended only to the prevention of sales, for, if so, this would have worked merely to deprive the public treasury.of a large income, devoted to the cause of public instruction. Whether wisely or not, the legislature must have determined, either upon the ground of public health, public peace, or the public morality, or having all of them in view, that it was best, as a matter of internal police regulation of the State, that intoxicating liquors should be placed under the ban of the law. It is not to be denied that the law is sweeping and drastic. This,
In our opinion the use of the words “personally or by agent,” in the act of 1893, if not'entirely superfluous, can in no event be construed as restricting the meaning and effect of the word “solicit” to personal solicitations onty. It must he remembered, as a' notable historical fact, that originally many of the strongest prohibitionists were not skilled lawyers, and vice versa. The words “personalty or by agent” were, no doubt, inserted, not-with the wish of restricting the meaning of the word “solicit,” but in the attempt to broaden it. And when we consider that the intention of the act, to which we have already referred, was to make criminal the introduction of intoxicants from a county where the sale of such intoxicants was legal, into a county where the sale was prohibited, it is readily to be seen that while the solicitation which was made penal could be a personal solicitation, it was none the less made a crime for any person, either himself or by an agent, in any way to solicit the sale of intoxicating liquors where it was prohibited by law. The use of the word "personally” is more of a reference to the doctrine that in misdemeanors all who participate in any way in the commission of a criminal act are principals, than a reference to the means which might be employed to solicit sales. The legislature declared, in effect, in this section, what has always been the policy of this State with reference to the violation of its liquor laws (as to sales under license and -to minors) that the solicitor should be responsible for the act of his agent, at his peril, as well as that the agent should be criminally responsible for his own act. The clear meaning of the act of 1893, so far as soliciting is concerned, is that the person who sells intoxicating liquor or solicits its sale in a prohibition county shall be responsible, whether the act is committed by himself individually, or by any person who is his agent, it matters not what may be the means employed by either to effect the illegal solicitation. Our view is sustained and strengthened by the provisions of §429,
The learned counsel for plaintiffs in error insist that the word “personally” is the keynote, in determining what the act forbids, and quote various liquor laws from which it is absent, to support the statement that “it is a stranger to the State’s liquor laws.” They insist that if §428 had read “if any person shall sell or
We have already referred to the fact that acts are frequently presented and pressed to passage whose authors are not skilled in the use of such language as will convey most aptly the thought desired to be expressed, and yet the language of the section now under consideration is very similar to that of the statute forbidding the sale of liquor to minors, and was, no doubt, intended to express exactly the same thought, as the latter statute forbids “any person, by himself or another,” to sell or furnish intoxicating liquorá to minors (Penal Code, §44-1). The same thing is true of §445 of the Penal Code, which forbids any person, who keeps or carries on, “either by himself or by another,” a barroom, to employ a minor in the barroom. Other statutes of the State, upon other subjects, use the same language, — “any person who shall by himself or another.” This is nothing more than a warning to the entire citizenry of the State that principals and accessories are alike punishable. We have no difficulty, therefore, in holding that it was the intention of the legislature (in order to make the prohibition laws of those counties that might adopt them effective) to absolutely prohibit the encouragement of purchases of intoxicating liquors in counties which had prohibited the sale, by any kind or form of solicitation, except that licensed sellers might solicit orders from licensed druggists and practicing physicians. As the
The next question, then, is whether the legislature had the power to penalize a solicitation which originated, say, in Fulton county and was completed in ^Washington county, so as to make the offense punishable in the latter county. To put the exact question raised by this record, if the solicitation was made by mailing the letter in Fulton county, and the letter was received by due course of mail by the person to whom it was addressed, in Washington county, would the courts of Washington county have jurisdiction of the case? We think so. It has been held that if one standing in one jurisdiction fires a gun and kills another, who is in a different and distinct jurisdiction, the courts of that government, where the bullet took effect, alone have jurisdiction of the crime, if any was committed. A thief may be prosecuted in any jurisdiction into which the stolen goods are carried. He who sends poison by mail with the intent of accomplishing the death of another, if {he poison be taken and death results, is triable for the murder where the poison is administered. It it be a crime at all, then, to solicit sales of whisky, regardless of the method of soliciting, the -venue of the offense must be the point where the solicitation is communicated to the person sought to be solicited. If the agent (for, as we have said before, the word “personally” can not limit or qualify the word “agent” in the statute) communicated by telephone, the solicitation would only be complete when the message was heard by the probable purchaser; and therefore the crime would be complete at the location occupied by the person solicited during the conversation. It has been held, as to telegrams, that damages accruing from the failure to deliver a message, though
In the recent case of United States v. Thayer, 209 U. S. 39 (28 Sup. Ct. 426, 52 L. ed.), which was one of unlawful solicitation of campaign contributions, the Supreme Court of the United States, discussing the question of solicitation by letter, says: “The solicitation was made at some time, somewhere. The time determines the place. It was not complete when the letter was dropped into the post. If the letter had miscarried or had been burned, the defendant would not have accomplished a solicitation. . . To sum up, the defendant solicited money for campaign purposes; he did not solicit until his letter actually was received in the building; he did solicit when it was received and read there, and the solicitation was in the place where the letter was received. We observe that this is the opinion expressed by the civil service commission in a note upon this section, and the principle of our decision is similar to that recognized in several cases in this court. Re Palliser (Palliser v. United States), 136 U. S. 257, 266 [34 L. ed. 514, 10 Sup. Ct. 1034]; Horner v. U. S., 143 U. S. 207, 214 [36 L. ed. 126, 12 Sup. Ct. 407]; Burton v. U. S., 202 U. S. 344, 387 [50 L. ed. 1057, 26 Sup. Ct. 688].” While the Thayer case is not identical with the case at bar, the following language very clearly sustains our view, and holds, not only that it is possible to solicit by letter as well as in person, but also that the offense of solicitation, if it be made an offense, is only complete when the letter has reached the addressee in the manner intended by the writer. It also, we think, settles the question that the United States mail can be the agent of him who solicits, and thereby establishes the proposition-.that even a mailman, delivering the letter, may be the agent of the writer, within the terms of §428, even if we were to hold, as contended for by counsel for plaintiffs in error,
We think it clear, then, that the court of the place where the solicitation is completed by the delivery of the letter, in the way intended and by the agency selected by the defendants, would have jurisdiction of any crime growing out of the solicitation. ' Consequently, we hold that the solicitation by mail of orders for whisky or other intoxicants, to be filled for persons who live in counties where by law the sale of intoxicating- liquors is prohibited, is violative of §428 of the Penal Code. See 9 Cyc. 297 and cit.; Palliser, Horner and Burton cases, supra. To sum up the matter: whether a solicitation is personal or by an agent is not dependent upon the personal presence of the solicitor, but upon whether the means of solicitation, whether oral or in writing, are used by an agent or by the principal himself. The solicitation of orders by mail, for the sale of intoxicating liquors, is personal solicitation, if the seller himself in person writes or mails the letter received by the prospective buyer. The venue of a crime committed by mail is at the point where the matter transmitted by mail is delivered and takes effect. Where a sale of intoxicating liquors is solicited by communication, written or printed, mailed in one State, as no crime is committed until the delivery of the letter in the State where such solicitation is forbidden, the county where the addressee receives such letter and gains knowledge of its contents has jurisdiction of such offense.
The ruling in Rhodes v. Iowa, 170 U. S. 412 (42 L. ed. 1088, 18 Sup. Ct. 664), is not in conflict with the Rahrer case, the effect of the holding being merely that the Wilson act did not authorize the laws of Iowá to be applied to liquors while in transit from another State and before their delivery in Iowa. On the contrary, the ruling in the Bahrer case was reiterated, that liquors were divested of their character of articles of interstate commerce after their delivery in Iowa to the consignee. We think it clearly-established that the Wilson bill puts intoxicating liquors, shipped into a State, within the police power of such State upon their arrival and delivery to the consignee, that such liquors do not stand upon the same footing as other articles of interstate commerce, and that any police measure that is a valid exercise of, the police power of the State comes expressly within the purview of the Wilson bill. See also Vance v. Vandercook Co., 170 U. S. 438 (42 L. ed. 1100, 18 Sup. Ct. 674); American Express Co. v. Iowa, 196 U. S. 133 (49 L. ed. 417, 25 Sup. Ct. 182); Foppiano v. Speed, 199 U. S. 501 (50 L. ed. 88, 26 Sup. Ct. 138); Heyman v. So. Ry. Co., 203 U. S. 270 (51 L. ed. 178, 27 Sup. Ct. 104); Adams Express Co. v. Iowa, 196 U. S. 147 (49 L. ed. 424, 25 Sup. Ct. 185). To use the language of Justice White in the Pabst Brewing Co. case, supra, “Applying the Wilson act and the decisions thereunder to the statute here assailed, we think it clear that the contention that it is repugnant to the commerce clause of the constitution is without merit.” It is within the power of each State either to regulate the sale of liquor or to prohibit it altogether in the exercise of its police power.
At the time of the passage of the act of 1893, from which the code section is taken, in numerous counties of Georgia prohibitory laws were effective, while in other counties the sale of intoxicating liquors was legalized. The act, therefore, at that time was only effective in those counties where prohibition was effective. Now it is effective throughout the State, by reason of the passage of the general prohibition bill, approved August 6, 1907. This difference, however, does not affect the validity of the police regulation provided by the act of 1893, but only goes to the scope of the territory affected. In either case it is a matter of- police regulation, and if
Counsel for the plaintiffs in error, however, argue that to hold that one may not by letter, from without the State, solicit orders for the sale of his liquors which are not in Georgia but are stored in Tennessee would be to affect traffic, in the article and operate to deter shipments to Georgia, and, therefore, that the statute must be treated as if it bore upon the liquor while still in transit as the subject of interstate commerce. A similar contention was made in the Pabst cáse, and the Supreme Court said in reference thereto, “this proposition simply amounts to contending that the Wilson act should be disregarded, since to enforce it would give the States power to regulate interstate traffic in liquor. If when a State has but exerted the power legally conferred upon it by the act of Congress its action becomes void as an interference with interstate commerce, because of the-reflex or indirect-influence arising from
In insisting that negotiations leading up to an interstate sale of liquors are as much a part of interstate commerce as actual transit of goods, the learned counsel for plaintiffs in error lose sight of the fact that the TYilson bill has placed liquors upon a different plane from ordinary objects of interstate commerce. It is true, as a general rule, that “the negotiation in one State of sales of goods, which are in another State, for the purpose, of their introduction into the former State, constitutes interstate commerce.” 17 Am. & Eng. Enc. Law (2d ed.), 65. Upon this subject counsel for plaintiffs in error say, “if negotiations leading up to interstate traffic are subject to State regulation, there can be but little else left upon which the Federal constitution can act with profit;” and counsel proceed to argue that inasmuch as it is not a crime for a citizen of Georgia to negotiate for the purchase of liquor with a citizen of Tennessee who has liquor to sell, -it can by no means be held to be unlawful for a citizen of Tennessee to negotiate with a citizen of Georgia for the sale of such liquor. This would be true, no doubt, as to any article of commerce except intoxicating liquors. As to intoxicating liquors, the identical question has been decided by the Supreme Court of the United States adversely to the contention of plaintiffs in error. In DeLamater v. South Dakota, 205 U. S. 93 (51 L. ed. 724, 27 Sup. Ct. 447), not only are all the other questions with reference to interstate commerce, which are involved in the present case, adjudicated, but, as to the particular point now under consideration, it is expressly held that, “although a State may not forbid a resident therein from ordering for his own use intoxicating liquors from another State, it may forbid the carrying on within its borders the business of soliciting orders for such liquor, although such orders may only contemplate a contract resulting from final acceptance in another State.” In the opinion in that case, the
“As we have stated, decisions of this court interpreting the Wilson act have held that that law did not authorize State power to attach to liquor shipped from one State into another before its arrival and delivery within the State to which destined. From this it is insisted, as none of the liquor covered by the proposals in this ease had arrived and been delivered within South Dakota, 'the power of the State did not attach to the earryihg on of the 'business of soliciting proposals, for until the liquor arrived in the
It must be conceded, as insisted by counsel for plaintiffs in
In passing, we may say that the suggestion was made, in the argument, that certain constitutional questions should be certified to the Supreme Court. TJpon a careful examination of the demurrer we find that no such questions are made. Apart from the fact that no constitutional question is presented with that particularity and definiteness required by the decisions of the Supreme Court and of this court, it is clear that at most the demurrer raises only the question whether, for this court to give to §428 of the Penal Code the extension and construction which we have just given, would be to impinge upon the exclusive powers of Congress in the regulation of interstate commerce, as conferred by the Federal constitution. We have repeatedly held that a point of this kind does not present any such direct attack upon the constitutionality of the statute as to require certification. There are many constitutional questions which it is within the power of this court to decide. While our jurisdiction in that respect is limited, we
The real question in the eases turns on whether the soliciting of sales of liquors can be a crime. Is the solicitation crime, or legitimate commerce? If the State of Georgia has the power, as held by the Supreme Court of the United States, to make the soliciting of orders for intoxicating liquor a crime, as a measure of police regulation, then he who uses any agency to violate that law with success may be guilty of that crime. And his guilt or innocence is not affected by the fact that the solicitation is by letter,' — 'that such an one used the mail as his medium of communication and action,' — any more than if the case was one of sending a threatening letter, a challenge to fight a duel, a circular in regard to a lottery or soliciting campaign contributions, or asking a postmaster to sell stamps upon a credit, or than if the case were even of murder, where the package which caused death was conveyed by mail. Judgment affirmed.