Hart v. State

39 So. 523, 87 Miss. 171

• Court: Mississippi Supreme Court
• Decided: November 15, 1905
• Status: Published

Opinion

Truly, <T.,

delivered the opinion of the court.

We experience no difficulty in arriving at the conclusion that Code 1892, § 1601, is a legitimate and valid expression of legislative will. It is the universally accepted rule of statutory construction that no act of the legislature will be condemned as violative of or repugnant to the fundamental law unless it manifestly be in palpable conflict with some plain provision of the state or federal constitution; and, as such conflict is not to be implied, it is the duty of the court, whenever possible, to' give every expression of legislative will such construction as will enable the statute to have effect. “Whenever an act of the legislature can be so construed and applied as to avoid conflict with the constitution and give it the force of law, such construction will be adopted by the courts. An inquiry into the validity of an act, on the ground that it is unconstitutional, is an inquiry whether the will of the representative, as expressed in the law, is or is not in conflict with the will of the people as expressed in the constitution; and unless it be clear that the legislature has transcended its authority the courts will not interfere. Acts of 'the legislature constitutionally organized are presumed to be constitutional, and it is only where they manifestly infringe some of the provisions of the constitution, or violate the rights of the citizen, that their operation and effect can be impeded by the judicial power.” Burnham v. Sumner, 50 Miss., 520. Tested by the rule of construction as thus enunciated, it is manifest that the statute under review does not “violate the rights of the citizen;” nor does it contravene any provision of the state constitution.

That the legislative department of the state, in the exercise of police power, is vested with plenary power to regulate or prohibit the sale of intoxicating liquor, if ever debatable, is no longer with us an open question. Says this court in Rohrbacher v. City of Jackson, 51 Miss., 743: “It would seem that it ought hardly to be questioned at this day that it belongs to the police power of the state to regulate the retail dealing in and sale of intoxicating liquors. Perhaps all the states have legislated on the subject, some by total prohibition and others by dealing with the subject under rules and regulations. Such legislation rests on the popular conviction that it is to the interests of morals, sobriety, industry, and good order that the state should hold the traffic under surveillance. The state may deal with the subject by absolute prohibition or by regulations. . . . The police power extends to wholesome restrictions on property and individuals, in order to secure the general health, comfort, and prosperity of the state. The power of the legislature cannot be questioned.” Schulherr v. Bordeaux, 64 Mass., 59 (8 South. Rep., 201). If, therefore, the legislature has the power to prohibit absolutely the sale of intoxicating liquors, and make any violation of such prohibitory law a criminal offense, obviously it may also forbid any one to assist in the commission of such offense and provide for the punishment of those who aid or assist. It is true, as stated by counsel for appellant, that generally there is no agency in crime. It is also true that all who participate in the commission of a misdemeanor are principals. But this does not prevent the legislature, in the exercise of its unquestionable power, from making criminal other acts which, in its judgment, militate against the “general health, comfort, and prosperity of the state.” Nor dbes it prevent the fixing- of gradations in the punishment of crimes. Far from being the exercise of a doubtful power, we think the statute here assailed falls clearly within the well-defined and recognized line of legislative authority.

But the validity of the statute is also challenged as infringing the provisions of the federal constitution. Is this contention sound? Clearly the statute does not by its terms, nor by any rational intendment, discriminate between citizens of this and any other state. “Any person,” says the statute, who may “act as agent or assistant of either the seller or purchaser in effecting the sale” of intoxicating liquor in a place where such sale “is prohibited by law” shall be guilty of a misdemeanor. The penalty is imposed upon every person who commits the offense therein defined. Begardless of citizenship, “any person” who violates the law must suffer the punishment prescribed thereby. The legislature, in its wisdom and in the exercise of an undoubted power, has made the commission of certain acts a crime. It punishes the act when committed by our own citizens; surely the transient nonresident is not entitled to more lenient treatment.

Nor do we think the statute in conflict with the interstate commerce clause of the federal constitution. It imposes no burden upon the nonresident dealer by reason of his citizenship, nor does it place any limitation or restriction upon free commerce between the states. It may be, conceded, as contended, that to the extent that this statute tends to reduce the consumption of intoxicating liquors, it to> that extent decreases their importation, and therefore, indirectly, at least, it impedes free interstate commerce. The same argument is equally applicable and more forceful when applied to absolute prohibitory laws, yet we have already seen that such are uniformly upheld. “It may be that the effect of the law is to prevent the importation of liquors from other states, but the • distinction between state restrictions upon the importation, and state restrictions upon the sale of a commodity when within the state, is clearly recognized and well defined.” Lang v. Lynch (C. C.), 38 Fed. Rep., 489 (4 L. R. A., 831); License Cases, 5 How., 504 (12 L. ed., 256); State v. Delamator (S. D.), 104 N. W., 537; Mugler v. Kansas, 123 U. S., 623. (8 Sup. Ct., 273; 31 L. ed., 205). The suggestion, even if well founded, that under a certain hypothetical state of facts the enforcement of the statute under consideration would operate as a regulation of interstate commerce, affords no ground on which to base an attack upon the validity of the law as an expression of legislative will. Vance v. Vandercook, 170 U. S., 439 (18 Sup. Ct., 674; 42 L. ed., 1100); Tiernan v. Rinker, 102 U. S., 123 (26 L. ed., 103); In re Rahrer, 140 U. S., 545 (11 Sup. Ct., 865; 35 L. ed., 572).

The inquiry whether in the instant case the appellant has or has not, under the facts of the record, violated the law, sheds no light on the other question as to the constitutionality of the law itself. The statute must be construed as written, and, so construing it, we uphold it as not infringing upon any of the provisions of the fundamental law, either state or national. The authorities relied upon by appellant on this point all fall within the category of cases dealt with by this court in Overton v. Vicksburg, 70 Miss., 558 (13 South. Rep., 226)—cases in which the commodity dealt with was not only a legitimate subject of interstate commerce, but one the sale of which was permitted by the law of the state. In such cases this court, following the decision of the supreme court of the United States—Robbins v. Shelby County, 120 U. S., 489 (7 Sup. Ct., 592; 30 L. ed., 694)—of the federal question involved, held that the imposition of a privilege tax was invalid, because it operated as a regulation of interstate commerce, and hence was within the inhibition of the federal constitution.

Brit there are two reasons why those authorities are not controlling in the case at bar — first, because this statute is not an attempt to require any license or payment of privilege tax as a condition precedent to following a certain lawful occupation or calling. It does not attach any conditions, limitations, burdens, or restrictions upon the doing of a lawful act, but undertakes to prevent the doing of an unlawful one. Second, because the article or commodity dealt with, while a recognized subject of interstate commerce, so that its importation cannot lawfully be prevented — constrained to follow doubtingly the authoritative utterance of the majority of the court in Bowman v. R. R. Co., 125 U. S., 465 (8 Sup. Ct., 689, 1062; 31 L. ed., 700), and Leisy v. Hardin, 135 U. S., 100 (10 Sup. Ct., 681; 34 L. ed., 128)—is an article the sale of which, after importation, may be legally forbidden. Since the enactment by congress of the act of August 8, 1890, commonly called the “Wilson act,” intoxicating liquor imported into a state becomes, immediately upon arrival, subject to the law of such state, so that the sale there, if forbidden by the law of such state, is unlawful, though made by the importer and in the original package. Judson, Inter. Com., 18. “Congress has now spoken, and declared that imported liquors or liquids shall, upon arrival in a state, fall within the category of domestic articles of a similar nature.” In re Bahrer, supra- “Congress did not use terms of permission to the state to act, but simply removed an impediment to the enforcement of the state laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the state not then possessed, but-allowed imported property to fall at once upon arrival within the local jurisdiction.” Id. “It has been settled that the effect of the act of congress is to allow the statutes of the several states to operate upon packages of -imported liquor before sale.” Rhodes v. Iowa, 170 U. S., 419 (18 Sup. Ct., 664; 42 L. ed., 1088). Hence, all sales of intoxicating liquors are governed by the state law. If in the particular place the sale be permitted, the seller must comply with the requirements of the law; if forbidden, the sale is unlawful, no matter by whom made, under what circumstances, or whether the liquor be imported or domestic.

The only question remaining for consideration is whether, under the facts of the case, appellant is guilty of the offense charged. Did he, acting as agent in a place where all such sales were prohibited, assist in effecting sale of whisky ? There are no controverted facts. The proof is this: Appellant is a citizen of Louisiana, and, either as partner or employe, conducts a retail whisky business in that state. In the prosecution of his business he visits frequently the city of Brookhaven, in this state,, in which, being in Lincoln county, the sale of intoxicating liquors is prohibited by law. He solicits and takes orders for whisky, which is delivered in Louisiana to an express company for transportation and delivery to the q>urehaser. Appellant agrees with the purchaser as to quantity, quality, and price of whisky ordered, and collects the purchase price thereof in money before the whisky is delivered, and even before the order is forwarded. It will be poted that the entire transaction is closed in this state and at the time of the receipt of the order, save only the actual delivery of the whisky. Undoubtedly this is acting as ag’ent of the seller in effecting a sale. Without his active ‘intervention no sale could be consummated. He acts without any submission of orders for approval, but conducts all negotiations, collects the purchase price, and directs the delivery. It is idle to quibble over where the delivery in a strict legal sense occurred, whether in this state or Louisiana. The question of appellant’s guilt under this statute is not affected by that point. He is not indicted for making a sale, but for acting as agent of the seller and assisting in effecting a sale. See, as shedding light on this branch of the subject, State v. Cullins, 53 Kan.,105 (36 Pac. Rep., 56; 2d L. R. A., 212); State v. Ascher (Conn.), 7 Atl., 822; State v. Delamator, supra; Starace v. Rossi, 69 Vt., 303 (37 Atl., 1109); Backman v. Wright, 27 Vt., 187; Westheimer v. Weisman (Kan. Sup.), 57 Pac. Rep., 969; Taylor v. Pickett, 52 Iowa, 467 (3 N. W., 514).

A sale of intoxicating liquor was made. Appellant assisted in effecting that sale, and acted as agent of the seller in this state at a place “in which the sale of such liquor is prohibited by law.” This constitutes the specific offense dealt with by this particular statute, and every element of appellant’s guilt is plainly shown. The argument made in behalf of appellant, that his conviction cannot be upheld, because the sale was incomplete until delivery and that delivery was made beyond the borders of the state,- was, under slightly different circumstances, successfully interposed in Pearson v. State, 66 Miss., 512 (6 South. Rep., 243; 4 L. R. A., 835), decided in April, 1889. But as a remedy for this evil, and to supply the omission in the law thus called to its attention, the legislature in February, 1890,.passed Laws 1890, ch. 62, p. 71, which now constitutes Code 1892, § 1604, thus closing effectually this avenue of escape.

Affirmed.