54 Conn. 299 | Conn. | 1886
Lead Opinion
This is a prosecution for selling spirituous liquor contrary to law. The facts are concisely stated in the charge to the jury:—“It is agreed, indeed testified to by the accused, that he went to Vernon and solicited, as agent for Swartz Bros, of New York city, (being paid a salary by them for his services), Einsidel to become a purchaser from Swartz Bros, of certain spirituous liquors; that upon such solicitation, Einsidel gave an order to the accused for certain spirituous liquors, to be furnished by Swartz Bros.; that that order was transmitted to their house by the accused, and, in pursuance of the order, the goods were forwarded and went into the possession of Einsidel. These are the agreed facts in the case. The only question is a question of law as to their legal effect. If, acting as agent for Swartz Bros., living and having their place of business in New York city, the accused came to Rockville and solicited the person named in this complaint to purchase intoxicating liquors from them, and as such agent took his order upon Swartz Bros., given by reason of such solicitation, and the liquors were afterwards delivered by Swartz Bros., in pursuance of the order so obtained, the defendant is liable, and that although such delivery took place in New York.”
The defendant was convicted and appealed to this court. His grievance is that he was convicted of an unlawful sale, while, as he contends, he effected no sale within the meaning of the statute in this state. He says that he only solicited and obtained an order in this state, and that the sale was completed by a delivery of the liquors by his employers to the purchaser in the state of New York.
The statute of 1882, part 6, section 1, (Acts of 1882,
The question is, what did the legislature mean by selling by sample, or by soliciting or procuring orders ? A majority of the court think that it intended to prohibit just such a sale as was made in this case. If the statute is to be so construed as to limit its operation to sales completed by delivery in this state, of course a vast majority of sales by soliciting orders will not be embraced in the statute. We think that the legislature, taking notice of the fact that wholesale dealers in New York and elsewhere out of this state generally sell their wares through agents going from place to place soliciting and procuring orders, intended to prohibit such sales. Otherwise the facilities for making such sales are so great, extending to every town and hamlet in the state, that the efficiency of the license law would be materially impaired. Dealers in neighboring states, without license and without restriction, could sell and cause to be delivered in any and all parts of the state liquors to any extent. Hence the legislature was careful to guard against such a result by prohibiting, as it does in the eleventh section, all sales without a license and all sales in a no-license town. It allows a licensee under the act to solicit and procure orders in any town in which such liquors may legally be sold. All others are absolutely prohibited from selling in any way. Licensed dealers therefore are restricted in such sales to license towns, while the construction con
It will be useful to compare the present statute with those previously existing. They were as follows :—“ Any person, without a license therefor, who shall sell * * * any intoxicating liquor ® * * shall be fined not less than fifty dollars, &c.” Revision of 1875, p. 520, sec. 41. “If any person, in violation of this act, by himself, his servant or agent, shall, for himself or for anybody else, directly or indirectly, or on any pretence, or by any device, sell, or, in consideration of the purchase of any other property, give to any other person any spirituous or intoxicating liquor,” &c. Revision of 1866, p. 695, sec. 17.
Thus it appears that under those statutes a completed sale was essential. It is at least doubtful whether a person coming into this state and soliciting an order, which order was filled by a delivery of the property out of the state, committed any offense under those acts. There was no technical sale until the property was selected and delivered, either to the purchaser or to some one for him. The delivery being out of the state, the argument that the sale was not completed in this state, and therefore that there was no offense, would seem conclusive. In this state of the law, and in view of the fact that sales were largely and even generally made by procuring orders, the legislature in 1882, for the first time, put into the enacting clause of the statute the words— “ by sample, by soliciting or procuring orders.” For what purpose ? There can be but one rational answer: to prohibit all sales by soliciting orders except such as the act expressly allows. Licensed dealers are in terms allowed to sell by orders in license towns. They and all others are prohibited from so selling in no-license towns. We ought not to, and we cannot, so construe the statute as to discriminate against our own citizens. To avoid that it is indispensable that foreign and domestic
The claim that the legislature intended only such sales as should be consummated by a delivery in this state cannot be allowed. It is a matter of common knowledge that sales effected by drummers are usually, if not always, consummated by a delivery at the vendor’s place of business to a common carrier; and while such delivery for all civil purposes completes the sale made by the drummer, vests the title in the purchaser, and gives the seller a right to the purchase money, yet for all police purposes it is competent for the legislature to say that the acts done by the drummer shall of themselves constitute a sale and therefore an offense. And we think the legislature intended so to say, and to make all such acts an offense, whether the delivery was in or out of the state. By doing so the word “ sell ” is used in the same sense in which it is generally used by business men in relation to this subject matter. In common language a drummer sells goods; he sells by sample; he sells by soliciting and procuring orders ; the dealers sell-by drummers as their agents. Now if the statute does not reach all such cases then it falls short of reaching the evil aimed at, and'the intended remedy is a failure.
It will be observed that the question before us is not— what ought to be the law ? but—what is it ? It may be that the statute will sometimes operate harshly; but such considerations are for the legislature rather than the courts.
There is no error in the judgment complained of.
In this opinion Pakdee and Loomis, Js., concurred.
Dissenting Opinion
(dissenting.)—On the trial of this ease the facts were not in dispute. They were substantially as follows :—
The defendant procured an order from one Einsidel of the town of Vernon in this state to be sent to Swartz Brothers
Do these facts constitute a breach of the statute of 1882, which provides that “ any person who, without a license therefor, shall, by sample, by soliciting or procuring orders, or otherwise, sell or exchange, or shall offer or expose for sale or exchange, or shall own or keep with intent to sell or exchange, any spirituous or intoxicating liquors,” shall be fined, &c. The question then is, did the defendant sell to Einsidel the spirituous liquors in question, when he procured from him the order sent to Swartz Brothers, or when Swartz Brothers afterwards in fact sold the liquors in New York to Einsidel, and forwarded the same to him?
It is conceded by the majority of the court that the act of the defendant did not amount to a sale when the order was procured and sent; but the claim is that the sale was consummated when the sale was made in New York, and the liquors had arrived at Einsidel’s place of business in Vernon.
But what kind of a sale was it ? All that the defendant did was to procure the order and send it. He had no authority to do anything more. He could make no contract of sale, much less make a sale, of the liquors of Swartz Brothers. "What kind of a sale was it? The defendant
It seems to me that the statute itself should put an end to all controversy in regard to the meaning in it of the word “ sell.” Its language substantially is—“ Ho person shall sell, &c., without a license therefor,” that is, without a license for the sale. The statute has in view sales only which persons may be licensed to make. It seems to me this is clear. How, licenses are provided for sales in fact, and for such sales only, and when the statute declares, “ without a license for the sale that is made,” it means a sale in fact, made by the party, which he might have been licensed to make.
I think therefore, that the act of the defendant in simply procuring the order and sending it to his employers in Hew York, does not constitute a sale within the meaning of the act, although followed by a sale by Swartz Brothers in Hew York, and by a forwarding of the liquors to Yernon at the purchaser’s expense.
If the defendant had been authorized to make a contract of sale of the liquors in question, and he had made it, or if he had made it without being authorized, and in either case the liquors had been sent and delivered to Einsidel in fulfillment of the contract, then I think it might be said that the defendant had sold the liquors within the meaning of the statute. But I cannot think that if one should say to Ms neighbor, who was desirous to obtain the best of liquors for Ms own consumption—“ Go to A. B. in Hew York and purchase your next supply,” and even if he should urge Mm to do so, and the neighbor should go to A. B. in consequence and purchase and bring home his supply of liquors, that the neighbor who made the solicitation would render himself amenable to this statute, on the ground that he had sold the liquors to his neighbor without a license therefor. He would be so liable if the construction is correct wMch the majority of the court have given to the statute.
But it is said that the eleventh section of the act strongly supports the view taken by the majority of the act in ques
Manifestly the object of this last clause was, to make it clear beyond the possibility of a claim to the contrary, that licensed persons were not included in the first clause of the statute. Again, the first clause is a sweeping prohibition of sales, in the manner described, by unlicensed persons everywhere in the state, leaving it to be inferred, to some extent, that licensed persons may make such sales anywhere, as well in no-license towns as in license towns ; and to prevent such inference the last clause may have been inserted, confining their sales by soliciting orders to license towns.
Again, it is said that the construction which the defendant claims should be given to the statute would destroy to a great extent its efficiency, and would involve an unjust discrimination in favor of non-residents of the state. But such considerations as these should be addressed to the legislature, to induce it to enact a further statute on the subject, if the present one does not go far enough; they throw little light upon the present inquiry, what the statute really means. No statute can prevent the buyers of spirituous liquors from going to New York to make their purchases, if they are so disposed, as was the fact in the present case. Suppose Einsidel had taken the order after he had given it to the defendant, and had gone himself to New York, and had there made the purchase in person, and had brought home with him the liquors in question, would the
It seems to me that the case of Crarbraoht v. The Commonwealth., 96 Penn. St., 449, is directly in point, and is a strong authority for the defendant.
I think there is error.
In this opinion Granger, J., concurred.
