Mr. Justice Blatcheord
delivered the opinion of the court.
On the 26th of December, 1882, a grand juror, of the town of Rutland, in the county of Rutland and State of Yermont, made a written complaint, on his oath of office, before a justice ■of the peace of that county, that John O’Neil, of Whitehall, New York, on December 25th, 1882,. at Rutland, at divers times, did “sell, furnish and give away intoxicating liquor, without authority,”.and contrary to the statute, and further, that O’Neil, at the March term, 1819, of the Rutland County court, had been convicted of selling, furnishing and giving away intoxicating liquors, against the law. Thereupon the justice issued a warrant for the arrest of O’Neil. He was arrested and brought before the justice, and pleaded not-guilty.
The statute of Yermont under which the prosecution was instituted is embodied in §§ 3800 and 3802 of chapter 169 of ■ the Revised Laws of Vermont of 1880, (pp. 734, 135,) in these words:
“ Section 3800. No person shall, except as .otherwise especially provided, manufacture, sell, furnish or give away, by himself, clerk, servant or agent, spirituous or intoxicating liquor, or mixed liquor of which a part is spirituous or intoxicating, or malt liquors or lager beer; and the phrase £ intoxicating liquors ’ where it occurs in this chapter shall be held to include such liquors and beer.
“ The word £ furnish,’ where it occurs in this chapter, shall apply to cases where a person knowingly brings into or transports- within the State for another person intoxicating liquor intended to be sold or disposed of contrary to law, or to be divided among or distributed to others.
“ The words £ give away,’ where they occur in this chapter, shall not apply to the giving of intoxicating liquor at private dwellings, .or their dependencies, unless given to an habitual drunkard, or unless such dwelling or its dependencies become a place of public resort.
[326] “But no person shall furnish or give away intoxicating liquor at an assemblage of persons gathered to erect a building or frame of a building, or to remove a building or at a public gathering for amusement.
“Nothing in this'chapter shall prevent the manufacture, sale • and use of wine for the commemoration of the Lord’s supper, nor the manufacture, sale and use of cider, or, for medical purposes only, of wine made in the State from grapes or other fruits, the growth of the State, and which is without the admixture of alcohol or spirituous liquor, nor the manufacture by any one for his own use of fermented liquor.
“ But no person shall sell or furnish cider or fermented liquor at or in a victualling house, tavern, grocery, shop, cellar or other place of public resort, or at any place to an habitual drunkard.”
“Sec. 3802. If -a person by himself, clerk, servant or agent, sells, furnishes or gives away; or owns, keeps or possesses with intent to sell,, furnish or give away, intoxicating liquor or cider in violation of law, he shall forfeit for each offence to the State, upon the first conviction ten dollars and costs of prosecution; on the second conviction he shall forfeit for each offence twenty dollars and costs of prosecution, and shall also be imprisoned one month; and on the third and subsequent convictions he shall forfeit for each offence twenty dollars and the costs of prosecution, and shall also be imprisoned not less than three months nor more than six months.”
The complaint was in the form prescribed by § 3859 of the Revised Laws of Vermont, for offences against § 3802; and § 3860 provides that ■ under such form of complaint “ every distinct act of selling ” may be proved, “ and the court shall impose a fine for each offence.”
The justice, after hearing the proofs of the parties, entered judgment finding O’Neil guilty of 451 offences, second conviction, of selling intoxicating liquors in violation of chapter 169 of the Revised Laws, and ’adjudging that he pay to the treasurer of the State a fine of $9140, and the costs of prosecution, taxed at $412.96, and be confined at hard labor in the house of correction at Rutland for the term of one month, [327] and that, in case such fine and costs should not be paid on or before the expiration of said term of one month’s imprisonment, he should be confined at .hard labor in the house of correction at Rutland for the further term of 2$,836 days, to be computed from the expiration of said terríi of one month’s' imprisonment. From that judgment O’Neil appealed to. the county court of Rutland County. The appeal was allowed^ and he gave bail for his appearance.
In the county court O’Neil pleaded not guilty, and the case was tried by a jury. He did not take the point, either before the justice of the peace or the county court, that there was any defect or want of fulness in the. complaint: Any such point was waived, by the failure to take it. Besides, it did not involve any1 Federal question. The question of the consolidation of several offences in one complaint is purely a matter of state practice, and. it is a familiar rule of criminal law, that time need not be- proved as alleged. •
The jury found O’Neil guilty of 307 offences “ of selling intoxicating liquor without authority and contrary to the laws of Yermont, as of a second conviction for a like offence.” He filed exceptions, which state that, for the purpose of the trial, he admitted the following facts: “The respondent, John O’Neil, of Whitehall, in the county of Washington and State of. New York, is a wholesale and retail dealer in wines and liquors at said Whitehall, and has been so engaged in business there for more than, three years last past, and that said business by him carriéd on is á lawful and legitimate' business under the laws of the State of New York as conducted by him there. That during the last three years the respondent has received at his store, in said Whitehall, three hundred and seven separate and distinct orders by mail, telegraph and express, for specified and designated small quantities of intoxicating liquors, from as many different parties residing in Rut-land-, in the State of Yermont. The orders so sent by express were in the form of a letter addressed to the said John O’Neil at Whitehall aforesaid, and the letter attached to a jug, and the jug, -with the letter attached, was delivered by said parties to'the National Express. Company, in' Rutland, and charges [328] thereon paid by the parties so sending the order. Orders sent by mad were by letters or postal cards deposited in the post-offices at said Rutland, directed to John O’Neil at Whitehall, New York, and postage paid thereon. Orders sent by telegraph weie delivered by the sender at the telegraph offices in said Rutland, directed to said John O’Neil, Whitehall, New York, and charges paid by the sender, which orders requested the respondent to send said intoxicating liquors to the parties ordering the. same at said Rutland, and in more than, one-half the number of instances said orders directed him to send said liquors by express, 0. O. D., and in the other instances, where the orders did not specify, it was the intention of the purchaser to have the goods so sent to him. It is the usual course of trade for merchants receiving an order from a considerable distance for goods in small quantities, to send the sanpie by express, C. O. D., when the order is not from a regular customer or a party of known responsibility. That upo. i the receipt of said orders the respondent has in each casé measured out the liquors called for in his order at his store in Whitehall aforesaid, and packed the same in jugs or other vessels, and attached to each package a tag, upon which was written the name and address of the party orderr g the same, and delivered each package so directed and addressed, at Whitehall, aforesaid, to the National Express Company, a Newv,York corporation, a common carrier, doing business between New York and Montreal and including the route between said Whitehall and said Rutland, and each of said, packages also had upon said tag .the name and business card of the respondent, and none of said packages were in any manner disguised, and all of them were sealed with wax. It was not stated on the jugs or tags what they contained. The respondent at the same time • delivered to said express company a bill of said liquor, which said carrier placed in an envelope, marked C. O. D., which envelope had endorsed thereon, among other things, the following instructions: £ Do not deliver the whole or any part of the goods accompanying this bill tmtil you receive pay therefor. Be careful to notice what money you receive, and, as far as practicable, send' the [329] sanie as received and follow the special instructions of the shipper; if any are given, on the bills. If goods are refused or' the parties cannot be found, notify the office from whence received, with names and dates, and await further instructions ’ — meaning thereby that said express company should receive the amount of said bill upon the delivery of the package to the consignee, and that' without payment of said bill the said liquor should not be delivered; that, in the usual and ordinary-course of business of said carrier in such cases, the said express^ company delivered each of said packages to the consignee' named upon said tag, at Rutland, and at the same time and cohcurrently with -such delivery received the amount of the said bill in the C. O. D. envelope, the amount of freight fori the transportation of said package from Whitehall to Rutland,; and the charges for returning said money to the respondent at Whitehall. -The express company placed said money for the-payment of said bill in the same envelope and returned’ it to the respondent at Whitehall. The respondent did noth-ing to or with said liquors after the said packages were delivered by him at said Whitehall to said common carrier, and the said several consignées received -the samé and made pay:. ment as aforesaid, at Rutland, as and under the contract made, as aforesaid, through their said orders so sent-to the respondent at Whitehall. That it is the usual and ordinary course .of business of said express company, in case goods are refused or the consignees cannot be found, for the office to which goods are sent to notify the office from which they were shipped to notify the consignor of the facts, and the Consignor would be consulted and his orders taken and followed as to the disposition of the goods, and this would be the same whether goods were sent C. O. D. or otherwise.. The respondent gave - no special directions as to any of the packages shipped as aforesaid.” It appears clearly, from this admission of facts, that the charges paid in Rutland, to the express company, when the empty jug.was sent from Rutland, included only the charges for the transportation of the empty jug to Whitehall, and that the amount of freight for- the transportation of the packages ■ containing liquor, from Whitehall to Rutland, was [330] paid when it was delivered to its consignee at Rutland, simultaneously with the payment of the hill .for the liquor, and of the charges for returning the money to Whitehall.
The exceptions state that O’Neil requested the court to instruct the jury that the’ facts set forth in his admission did not constitute an offence against the statute, under the complaint in ,the cause, but the court refused so to hold, and he excepted; that he requested the court also to instruct the jury that, under the facts set forth in his admission, they ought to find him not guilty, but the court refused so to instruct the jury, and he excepted; that the court charged the jury, that if they believed the facts set forth in the admission to be true, the same made a case upon which the jury, should find a verdict of guilty against him, to which instruction he' excepted; that evidence was given that at the March term, 1879, of the Rutland County court, he was convicted' of selling, furnishing and giving away intoxicating liquors ; and that the court adjudged, upon the verdict and the evidence, that he was guilty of 307 offences of selling, intoxicating liquor without authority, as of' a second conviction. The exceptions were allowed, and for their trial the sentence was respited, execution stayed and the cause passed to the Supreme Court of Yermont.
. The judgment of the county court, as entered, was, that O’Neil pay a fine of $6110, and the costs' of prosecution, taxed at $197.96, and stand committed until the sentence should be ’ complied with; and that if the said fine and costs, and costs of commitment, ascertained to be 76 cents, the whole aggregating $6638.72, should not be' paid before March 20, 1883, he should be confined at hard labor, in the house of correction at. Rutland, for the term of 19,911 days.
The case was heard in the Supreme Court, and a decision' was rendered ,in the general term,'the Chief Judge and six Assistant Judges being present, at October term, 1885, which is reported in 58 Vermont, 140. The judgment of the Supreme Court was, that the judgment of the county court-was not in .anywise erroneous or defective and there .was not any error in the proceedings. O’Neil has sued out a writ of error from this court to review that jhdgment.
[331] The trial and conviction of O’Ned in the county court were solely for “ selling intoxicating liquor without authority.” The punishment prescribed therefor by § 3802 was that “ on the second conviction, he shall forfeit for each offence twenty dollars and costs of prosecution, and shall also be imprisoned one month.” The term of confinement for 19,914 days was three days for each dollar of the $6638, under § 4366 of the Revised Laws of Yermont, which prescribes that time of imprisonment in default of payment of the fine and costs in criminal cases. It is not assigned in this, court, as error, in the' assign'ment of errors, or in the brief for O’Neil, that he was'subjected to cruel and unusual punishment, in violation of the Constitution of the United States. It appears by the report of the case in 58 Yermont, that he. took the point in the Supreme Court of Yermont, that the statute of that State was repugnant to the 8th Amendment to The Constitution of the United States and to that of Yermont, in that it allowed “ cruel and unusual punishment.” That court said, in its opinion : “ The constitutional inhibition of cruel and unusual punishments, or excessive fines or bad, has no application. The punishment imposed by statute for the offence with which the respondent, O’Neil, is charged, cannot be said to be excessive or oppressive. If he has subjected himself to a severe penalty, it is simply because he has committed a great many such offences. It would scarcely be competent for a person to assad the constitutionality 'of the statute prescribing a punishment for burglary, on the ground that he had committed so many burglaries that, if punishment for each were inflicted on him, he might be kept in prison for life. The mere fact that cumulative punishments may be imposed for distinct offences in the same prosecution is not material upon this question. If the penalty were unreasonably severe for á single offence, the constitutional question might be urged; but here the unreasonableness is only in the number of/offences which the respondent has-committed.” We forbear the consideration of this question, because as a Federal question, it is hot assigned as error, nor even suggested in the brief of the plaintiff in error ; and, so far as it is a question arising under the constitution of Yer[332] mont, it is not within our province. Moreover, as a Federal question, it has always been ruled that the 8th Amendment to the Constitution of the United States does not apply to the States. Pervear v. The Commonwealth, 5 Wall. 475.
The opinion of the Supreme Court of Yermont was delivered. by Chief Judge Royce. The case being one for selling intoxicating liquors contrary to law, the court stated the question to be, whether the liquors wére sold by O’Neil, in contemplation of law, in Rutland County, and said that the answer depended upon whether the National Express Company, by which the liquors were delivered to the consignees thereof, was in law the agent 'of the vendor or of the vendees; that, if the.purchase and sale of the liquors was fully completed in the State of New York, so that, upon delivery of them to-the express company for transportation, the title vested in .the consignees, as in the case of .a completed and unconditional sale, then no offence-against the law of Yermont had been committed; but that if, on the other hand, the sale, by its terms, could become complete, so as to pass the title in- the liquors to the .consignees, only upon the doing of some act, or the fulfilling of some condition' precedent, after they reached Rutland, then the rulings of the county court upon the question of the offence were correct.
The court then said:' “ The liquors were ordered by residents of Yermont from dealers doing business in'the State of New York, who selected from their stock such quantities and kinds of. goods as they thought proper'in compliance with the terms of the orders, put them up in packages, directed them to the consignees, and delivered them to the express company as a. common carrier of goods for transportation, accompanied with -.a bill, or invoice, for collection. The shipment was in each instance which it is-neeessary here to consider, ‘ C. O. D.; ’ and the cases show that the effect of the transaction was a direction by the shipper' to the express company not to deliver the goods to the consignees except upon payment of the amount specified in the O. O. D. bills, together' with the charges for the transportation of the packages and for the return of the money paid. This direction was understood by [333] the express company, which received the shipments coupled therewith.”
The court then remarked, that whether or not, and when, the legal title in property sold passes from the vendor to the vendee, is always a question of the intention of the parties, which is to he gathered from their acts and all the facts and circumstances of the case taken together, and cited Mason v. Thompson, 18 Pick. 305; Benjamin on Sales, §§ 311, 319, note c, and 320, note d; and Robert’s Vermont Digest, 610, et seq. It then proceeded: “ In the cases under consideration,” (viz.: the present case, and another case against O’Neil, for keeping intoxicating liquors with the intent to sell, etc.,) “ the vendors of the liquors shipped them in accordance with the terms of the orders received, and the mode of shipment was as above stated. They delivered' the packages of liquors, properly addressed to the several persons ordering the same, to the .express company, to' be transported by that company and delivered by it to the consignees upon fulfilment by them of a specified condition precedent, namely, payment of the purchase price and transportation charges and not otherwise. Attached to the very body of the contract, and to the act of delivery to the carrier, was the condition of payment before delivery of possession to the consignee. With this condition unfulfilled and not waived,.it would be impossible to say that a delivery to the carrier was intended by the consignor as a delivery to the consignee, or as a surrender of the legal title. The.goods were intrusted to the carrier to transport to the/ place of destination named, there to present them for acceptance to the consignee,-.and if he accepted them and paid the accompanying invoice and the' transportation charges, to deliver them to him'; otherwise, to notify the consignor and •hold them subject to his order. It is difficult to see how a • seller could more- positively and unequivocally express his intention not to relinquish his right of property or possession in goods until payment of the purchase price than by this ■method of shipment. We do not think the case is distinguishable in principle from that of a vendor who sends his clerk or agent to deliver the goods, or forwards them to, or makes them [334] deliverable .upon, the order of, his agent, with instructions not to deliver, them except on payment of .the price, or performance of some other specified condition precedent by the vendee. The vendors made- the express company their agent in the matter of the delivery of the goods, with instructions not-to part Avith the possession of them except upon prior or con-, temporaneous receipt of the price.. The contract of sale, therefore, remained inchoate or executory Avhile the goods were in transit, or in the hands of the express company, and could only become executed and complete by their delivery to the consignee. There Avas a completed executory contract of sale in New York; but the completed sale Avas, or was to be, in this State.”
The foregoing, comprises all that Avas said by the Supreme Court material to the case now before us.
It is assigned for error, that the Supreme Court held (1) that the sale of intoxicating liquor in New York, by a citizen of that State lawfully, was a crime under .the statute law of Vermont, Avhen the liquor so sold Avas shipped C. O. D. to the purchaser in Vermont, by his direction; (2) that a shipment of liquors by a common carrier from New York, by a citizen of that State to a purchaser in Vermont, under the circumstances of this-case, was a crime under the statute of Vermont, which could be punished by the courts of Vermont; (3) that such- statute Avas not in conflict with the clause of the Constitution of the United States which gives Congress poAver to regulate commerce with foreign nations and among the several States and with the Indian tribes; (4) that O’Neil, under the facts in this case, was amenable to the' statute laAV of Vermont prohibiting the sale, furnishing and giving aAvay of intoxicating liquors; and (5) that the construction the court gave to that statute, and its application to the facts of this case, was not in conflict Avith § 8 of article 1 of. the Constitution of the United States, in regard to the regulation of commerce.
It is contended for the State of Vermont that this court has no ju":'’diction of this case, because the record does not present á Federal question. We are of opinion that this conten[335] tion is correct, tand that the writ of error must be dismissed for want of jurisdiction in this court.
No point on the commerce .clause of the Constitution of the United States was taken in the county court, in regard to the present case, or considered by the Supreme Court of Vermont. One reason for this may have been that the decision in Peirce v. New Hampshire, 5 How. 504, had not theretofore been in terms overruled or questioned by this court, the cases of Bowman v. Chicago &c. Railway Co., 125 U. S. 465, and Leisy v. Hardin, 135 U. S. 100, not having been then decided. The only points raised in the county court, according to the exceptions, were, that the facts set forth in the written admission of O’Neff did not constitute an offence against the statute of Yermont under the complaint, and that he ought to be found not guilty under the facts so set forth. The matters thus excepted to were too general to call the attention of the state court to the commerce clause of. the Constitution, or to any right claimed under it. Farney v. Towle, 1 Black, 350; Day v. Gallup, 2 Wall. 97; Edwards v. Elliott, 21 Wall 532; Warfield v. Chaffe, 91 U. S. 690; Susquehanna Boom Co. v. West Branch Boom Co., 110 U. S. 57; Clark v. Pennsylvania, 128 U. S. 395.
The only question considered by the Supreme Court, in its opinion, in regard to the present case, was whether the liquor in question was sold by O’Neil at Rutland or at Whitehall, so as to fall within or without the statute of Vermont, and the court arrived at the conclusion that the completed sale was in Vermont. That does not involve any Federal question.
In its opinion in 58 Vermont, 140, the Supreme Court considered not only the present case and the case before referred to against O’Neil for keeping intoxicating liquors with intent to sell, etc., but also two other eases, being proceedings in rem for the condemnation of intoxicating liquor on its seizure, in which latter two cases the National Express Company was claimant, and in one of them the liquors were forfeited, while in the other of them some of the liquors, (being those which had been paid for to . the shipper at Whitehall, New York,) were returned to the claimant and the remainder forfeited.
[336] In its opinion, the court said: “ Concerning the claim that section -8”. of article 1, “of the Federal Constitution, conferring upon Congress the exclusive right to regulate commerce among the States, has application, it is sufficient to say that HO regulation of or interference with interstate commerce is-attempted.” That this observation had reference solely to the two seizure cases, and not to the present case, is apparent from the fact that the court immediately went on to say: “ If an express company or any other carrier or person, natural oh corporate, has. in possession within this State an article in itself dangerous to the community, or an article intended for unlawful hr criminal use within the State, it is a necessary incident of the police powers of the State that such article should be subject* to seizure for the protection of the community.” The liquors in those two cases in rem were seized by the sheriff at Rutland, while in -the possession of the National Express Company, some of them havihg been delivered to that company at Troy, New York, and some at Whitehall, New York, and all of them having been ordered by persons at Rutland for their own use and not for sale or distribution contrary to law..
The Supreme Court of Yermont decided the case before, us upon a ground broad enough to maintain its judgment without'considering any Federal question. :No Federal question was presented for its decisión, as to this case, nor was the. decision of a Federal question necessary to the determination of this case, nor was any actually decided, nor does it appear that the judgment as -rendered could not have been given without deciding one. Hale v. Akers, 132 U. S. 554, 565, and cases there cited; San Francisco v. Itsell, 133 U. S. 65; Hopkins v. McLure, 133 U.S. 380; Blount v. Walker, 134 U. S. 607; Beatty v. Benton, 135 U. S. 244; Johnson v. Risk, 137 U. S. 300; Butler v. Gage, 138 U. S. 52; Beaupré v. Noyes, 138 U. S. 397; Leeper v. Texas, 139 U. S. 462; Henderson Bridge Co. v. Henderson City, 141 U. S. 679; Hammond v. Johnston, 142 U. S. 73; New Orleans v. New Orleans Water Works Co., 142 U. S. 79.
It was entirely immaterial how, the liquor sold'by O’Neil at [337] Rutland came to be there, for sale there—whether it was made there, or whether it was brought in some way from the State of New York. The only question was whether it was at Rutland so as to be capable of sale there, and whether it was sold-there.'
Moreover, under the practice in the Supreme Court of Vermont, the very error relied upon must appear affirmatively, in the exceptions. Sequin v. Peterson, 45 Vermont, 255; State v. Preston, 48 Vermont, 12; Hathaway v. National Life Ins. Co., 48 Vermont, 335; State v. Brunelle, 57 Vermont, 580; Spaulding v. Warner, 57 Vermont, 654; Rowell v. Fuller, 59 Vermont, 688.
The result is' that the writ of error must be
Dismissed.