61 W. Va. 329 | W. Va. | 1907
Lead Opinion
Charles Smith was indicted and fined in Barbour county, the indictment charging that he did unlawfully sell spirituous liquors without license. The State’s evidence in support of the prosecution was that Smith, as agent of the Baltimore and Ohio Railroad Company, delivered to Arthur M. Blake boxes marked “Glass” proven to contain whiskey, shipped by a liquor dealer in Cincinnati, consigned C.' O. D. to Blake, and received payment from Blake for the articles; and that Blake had not ordered the - liquor to bo sent to him. The statute on which the State would ask conviction is chapter 40, section 1, Acts of 1903, reading as follows: “That any agent or employe of any person, firm or corporation, carrying on the business of a common carrier, or any other person, who, without a State license for dealing in intoxicating liquors, shall engage in the traffic or sale of such liquors, or be interested for profit in the sale thereof, or actas.the agent or employe or consignor or consignee of the same, or who shall solicit or receive any order for the sale of any intoxicating liquors, or deliver to any person, firm or corporation, any package, containing such intoxicating liquors, shipped “Collect on Delivery” or otherwise, except to a person having a State license to sell the same, or to the bona fide consignee thereof who has in good faith ordered the same for his personal use, shall be deemed to have made á sale thereof contrary to law, and guilty of a misdemeanor.” On the trial, in connection with his own evidence that he believed that Blake had ordered the goods from Cincinnati, and had no reason to
“United States Express Company.
Nov. 1, 1905.
“This is to certify that the entire shipment of 1 Box Glass shipped by M. E. Stone, from Cinti. 10th day of Nov., 1905, is for my own personal use and is ordered by me and is not to be sold, by me.
“Witness: W. B. Eobinson. (Signed) A. Blake.”
The court refused to admit the receipt in evidence.
Was the receipt admissible? This depends on the question whether inquiry by the jury was proper as to Smith’s knowledge or ignorance of the fact that the liquor had not been ordered by Blake to be sent to him from Cincinnati. The statute does not in words require that for conviction the act of delivery shall be with knowledge that the consignee had not ordered the liquor. It may be said simply to prohibit the act. We find in 12 Cyc. 148 the following: “As a general rule where an act is prohibited and made punishable by statute, the statute is to be construed in the light of the common law and the existence of a criminal intent is essential. The legislature, however, may forbid the doing of an act and make its commission criminal without regard to the intent of the doer, and if such an intention appears the courts must give it effect although the intention may have been innocent. Whether or not in a given case a statute is to be so construed is to be determined by the court by considering the subject-matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the legislature.” It will there appear that the authorities are many each way. I think the principles stated in Bishop’s Statutory Crimes, section 1022, are pertinent. “Under these statutes the question of the effect of a mistake of fact, discussed or adverted to in several other connections, has often arisen. It is not proposed to repeat the former discussions; they are referred to in a note, and the reader is re
The question of the validity of this act under the interstate commerce clause of the Constitution of the Union is raised. The act does not forbid the consignment of liquor to licensed dealers orto consignees, under real purchase. It does not forbid T)ona fide interstate commerce. Its object, so far as the point of this case goes, would seem to be to forbid a liquor dealer sending liquor to a person who had made no purchase, no
Our conclusion is to reverse the judgment, set aside the verdict, and remand the case for a new trial.
Reversed. Remanded.
Dissenting Opinion
dissenting as to construction of statute, but concurring in reversal of judgment and granting of new trial.
On the 10th, 14th and 18th days of November, 1905, M. E. Stone, a dealer in spirituous liquors at Cincinnati, Ohio, shipped from said city by the United States Express Company, under a C. O. D. consignment, three several packages of whiskey to Arthur Blake, at a place on the Baltimore and Ohio Railroad, in Barbour county, this State, called Arden, Blake had given no order for any of the packages. Stone shipped them as aforesaid and, at or about the dates of shipment, notified Blake that the packages were, or would be, at the express office at Arden, consigned to him and would be delivered to him on payment of the C. O. D. charges. Willing to accept the liquor and pay for it, though not ordered, Blake did so, and deliveries thereof were made by the express company through its agent, Charley Smith, who did not know the liquor had not been ordered. Before delivering the packages, he had Blake sign receipts therefor, containing the statement that he had ordered it. Afterward, Smith was indicted for violation of section 1 of chapter 40 of the Acts of 1903, and convicted and fined $50.00, and he has brought the judgment here for review on a writ of error.
If the statute is valid, and is applicable to such transactions, the guilt of the defendant is beyond question. But invalidity of the statute is urged on the ground tliat the enforcement thereof according to its letter, gives it extra-territorial operation and effect, and works a restraint upon interstate commerce, in violation of the Commerce Clause of the federal Constitution. Whether it restrains interstate commerce, and, in the sense of restraining it, regulates the same, is the only important question presented. Its solution requires a review and consideration of those federal decisions which determine the character and status of intoxicating liquors as commercial articles, define interstate commerce, mark the limits of the police power of the states, and indicate the extent to which Congress has removed restrictions upon the exercise of state control and regulation of intoxicating liquors, by denying to them the character of commercial articles.
It has been definitely settled for a long time by the decisions of the federal Supreme Court that intoxicating liquor is a legitimate commercial article, having the same status in interstate commerce as other trade commodities, such as wheat, corn, flour, live stock and manufactured articles, except in so far as a certain act of Congress, known as the Wilson Act, passed on the 8th day of August, 1890, has deprived them of that character. In the License Cases, 5 How. 504, 577, decided in 1847, Chief Justice Taney said, after referring to other things having a different status in law: “But spirits and distilled liquors are universally admitted to be subjects of ownership and property, and are therefore subjects of .exchange, barter and traffic, like any other com-
Because it is a legitimate subject of commerce, the state cannot affect it by legislation in the exercise of its police power as it can some other things. This distinction was observed in the License Cases, cited. At page 576, Chief Justice Taney said: “It has, indeed, been suggested, that, if a State deems the traffic in ardent spirits to be injurious to its citizens, and calculated to introduce immorality, vice, and pauperism into the State, it may constitutionally refuse to permit its importation, notwithstanding the laws of Congress; and that a State may do. this upon the same principles that it may resist and prevent the introduction of disease, pestilence or pauperism from abroad. But it must be remembered that disease, pestilence, and pauperism are not subjects of commerce, although sometimes among its attendant evils. They are not things to be regulated and trafficked in, but to be. prevented, as far as human foresight or human means can guard against them.” It has been rigidly maintained ever since by the federal Supreme Court and the courts of the several states. Plumley v. Massachusetts, 155 U. S. 461, where it is declared that “the states may legislate to prevent the spread of crime, and may exclude from their limits paupers, convicts, persons likely to become a public charge, and persons afflicted with contagious or infectious diseases.” The decision itself sustains a state statute, prohibiting the sale of oleomargerine, so colored as to cause it to look like yellow butter. It placed no restraint upon dealings in oleo-margerine not so colored and sold or offered for sale for what it really was. The act was sustained on the ground that the State has power to prevent fraud and deception, in which no
Having recognized the commercial character of spirituous liquors, which places them under the protection of national law, and beyond the police power of the states, as long as they remain in the channels of interstate commerce, the federal Supreme Court proceeded to ascertain the point at which imported liquors cease to be articles of interstate or foreign commerce and become a part of the common mass of the property of the state into which they have been carried, and it was settled at an early date that they were not divested of their commercial character so long as they remained unsold in the hands of the importer in the packages in which they had been shipped. In License Cases, 5 How. 504, at page 575, Chief Justice Taney said: “Indeed, goods imported, while they remain in the hands of .the importer, in the form and shape in which they were brought into the country, can in no just sense be regarded as a part of that mass of property in the State usually taxed for the support of the State government. The immense amount of foreign products used and consumed in this country are imported, landed and offered for sale in a few commercial cities, and a very small portion of them are intended or expected to be' used in the State in which they are imported. A great (perhaps the greater) part imported, in some of the cities, is not owned or brought in by the citizens of the State, but by citizens of other States, or foreigners. And while they are in the hands of the importer for sale, in the form and shape in which tliey were introduced, and in which they are intended to be sold, they
The doctrine of the License Cases, 5 How. 504, admitting power in the state to prohibit the sale in original packages of liquors imported from one state into another, prevailed from 1847 until 1889, when it was overthrown in Leisy v. Hardin. During that period of forty-one years, the power of the spates to prevent sales of liquors in the original packages carried into one state from another, was admitted and effective, because Congress had not passed any law, authorizing or regulating interstate traffic in such articles. From this proposition Mr. Justice Catron had dissented in the License Cases, and it remained a subject of diversity of opinion among the justices of the Supreme Court until, as stated, the views of Mr. Justice Catron finally prevailed in Leisy v. Hardin. In that case, it was ascertained upon a review of previous decisions, including Bowman v. Railway Co., that the legislative power of the states, being supreme as to all subjects falling strictly within their police power, state statutes regulating such subjects and operative within the territorial lim
For the purpose of restoring, conferring or unobstructing the power thus denied to the states, Congress, on the 8th day of August, 1890, passed, what is known as the Wilson Act, providing “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
Perhaps no case better illustrates what amounts to a restraint upon interstate commerce, that the states cannot impose, than that of Bowman v. Railway Co., cited. The Iowa statute forbade common carriers to bring intoxicating liquors into the state from any other state or territory, without having been furnished with a certificate, under the seal of the auditor of the county to which it was to be transported or consigned, certifying that the consignee or person to whom it was to be transported or delivered was
It is to be further observed that in almost every interstate transaction of a commercial character two contracts are made, one between consignor and consignee, the contract of sale, and the other between the consignor and the common carrier, the contract of shipment; and the decisions herein-before reviewed establish beyond question the interstate-commercial character of both contracts, as well as that of the shipment itself and the delivery of the merchandise to the consignee at the place of destination. Moreover, the duty of a common carrier to accept merchandise offered for shipment is a part of interstate commerce which cannot be controlled by state laws beyond the limits of the state passing them. This is the direct and inevitable import of the decision in the Bowman Case. That a contract of shipment between consignor and the common carrier, made without the state, is not subject to state control or regulation is likewise the import of the decision in the Rhodes and American Express Company cases.
That the enforcement of the statute in question here, as
As the statute so construed would be • plainly unconstitutional and void, a rule of construction impels us to- say that the legislature never intended it to apply to such transactions as the one disclosed by the evidence in this case. There is a presumption that the legislature knew the limit of its powers and had no intention, in passing an act-which seems to transcend them, to act in excess of its' powers. A recent case decided by this Court enforces this rule in the construction of a statute which, it was claimed, had such scope as to cover an interstate commercial transaction. Instead of giving it a construction that would have rendered it unconstitutional, and declaring it to be so, this Court held that the legislature did not intend it to operate to the full extent of its literal support. Underwood Typewriter Co. v. Piggott, 60 W. Va., 532, (55 S. E. 664.)
Some of my associates, constituting a majority of the Court seem to be of the opinion that, if the element of intent, on the part of the agent, to violate the statute be read
Being of the opinion that this statute, properly construed, has no such scope and effect as the circuit court has given to it, and that the facts disclosed by the evidence do not constitute any offense under it, I would reverse the judgment, set aside the verdict, grant a new trial and remand the case.