State v. Fisher

162 N.C. 550

• Court: Supreme Court of North Carolina
• Decided: February 19, 1913
• Status: Published

Opinions

WalKER, J.,

after stating tbe case: It is conceded, as we understand, that the special verdict was returned upon tbe second count, and there is no verdict upon tbe first count. It was held in S. v. Taylor, 84 N. C., 773, that “where tbe jury find a defendant guilty on one count, and say nothing in their verdict concerning other counts, it will be equivalent to a verdict of acquittal as to them.”

Tbe second count of tbe indictment was framed on Revisal, sec. 3524, which provides that “if any dealer in intoxicating drinks or liquors sell, or in any manner part with for a compensation therefor, either. directly or indirectly, or give away such drinks or liquors, to any unmarried person under tbe age of 21 years, knowing tbe said person to be under tbe age of 21 years, be shall be guilty of a misdemeanor; and such sale or giving away shall be prima facie evidence of such knowledge. Any person who keeps on band intoxicating drinks or liquors for the purpose of sale or profit shall be considered a dealer within the meaning of this section.” The jury, by their verdict, after finding and stating certain facts, which we have already set out, submit to the court whether, upon -those findings, the court is of the opinion that, in law, the defendants were dealers in intoxicating drinks and liquors, and that the acts of defendants constituted a sale of such drinks and liquors; and both questions the court decided in the negative. . The verdict of the jury, therefore, was confined to the particular offense made criminal by Revisal, sec. 3524, and they have not rendered a verdict for any other crime, nor have they considered the case in any other aspect. It follows that the defendants have been acquitted of the charge upon which the jury passed.

The section of the Revisal uxoon which the indictment was drawn not only describes the act of selling, which is unlawful, as one committed by a “dealer in intoxicating drinks or liquors,” but also defines a “liquor dealer” as “a person who keeps on hand intoxicating drinks or liquors for the purpose of sale and profit.” The business of the defendants is not embraced by these words. They were engaged in the business of banking, and were, in no sense, sellers of liquors or dealers therein. There is no finding of fact that they ever sold liquor of any kind or in any quantity, large or small, or that they, or either of them, ever kept “liquor on hand for sale or profit.” S. v. Lawrence, 97 N. C., 492; S. v. McBrayer, 98 N. C., 619. When they re-ceivéd the money from Carl Spencer and delivered the draft and bill of lading for the package of liquor to him, they were engaged in the ordinary and Usual business of banking. So that the State failed to show that the defendants were guilty of the specific offense charged against them. The court properly instructed the jury as to the law, and the verdict of acquittal, rendered by the jury in accordance therewith, cannot be disturbed.

But assuming that the defendants, upon the facts stated in the special verdict, must be regarded in law as having assisted in making or consummating the sale of the liquor by A. Hatke & Co. to Carl Spencer, we do not think the case is made any stronger for the State. The sale of the liquor to Carl Spencer by A. Hatke & Co. was interstate commerce, and could not be affected by tbe criminal laws of tbe State. With every disposition to enforce strictly and rigidly tbe laws of our State prohibiting tbe sale of liquor, in all cases to wbicb tbey apply, we must, at tbe same time, give full force and effect to tbe provision of tbe Federal Constitution, wbicb confides to Congress alone tbe regulation of interstate commerce. It bas been enacted by Congress tbat liquor shipped from one State into another in tbe course of interstate commerce shall, after its “arrival” in tbe latter State, be subject to its laws. This law was passed 8 August, 1890, and is known as tbe Wilson Act (3 Fed. Statutes Anno., p. 853), and it bas also forbidden a common carrier to collect, directly or indirectly, tbe purchase money for any liquor shipped over bis line from one State to another, tbe carrier being restricted by tbe terms of the act of Congress to “tbe actual transportation and delivery of the same.” Federal Penal Code (1910), sec. 239. It is not contended tbat either of these acts would sustain tbe conviction of tbe defendants under our law prohibiting tbe sale of liquor in tbe State, except in so far as tbe Wilson Act' allows tbe local law to operate -after tbe arrival of liquor in tbe State, and withdraws from tbe protection of tbe Federal laws, to tbat extent, sales in original packages. Tbe other act, Federal Penal Code, sec. 239, declared unlawful collections by tbe 'carrier, under c. o. d. shipments or otherwise. It is contended, though, tbat tbe defendants are guilty upon tbe special findings of tbe jury, because tbe package of liquor was shipped, and tbe bill of lading therefore was drawn to tbe order of A. Hatke & Co. of Richmond, Va., and reached its destination in this State, at New Bern, and tbat tbe sale was made here, when tbe draft was paid by Carl Spencer at tbe bank and tbe bill of lading was delivered to him, as tbe title then passed to him from Hatke & Co. But tbe argument leaves out of consideration tbe fact tbat tbe acceptance of tbe proposal to buy was made by them there, wbicb acceptance was clearly evidenced by the shipment of tbe goods. But we need not further discuss this question, as it is one for final decision by tbe highest Federal court, wbicb bas said tbat, in determining what is interstate coipmerce in the transportation of liquor from one State to another, it will not attempt to reconcile conflicting decisions of the State courts as to the time when the title passes in the case of a shipment c. o. d. or by draft and bill of lading- attached, as in this case. A full and complete answer to the State's contention will be found in Express Co. v. Iowa, 196 U. S., 133 (49 L. Ed., 417). In that case, the present Chief Justice, writing the opinion as a justice of the Court, and referring to the very question we have before us, says that, if upheld, the doctrine would deprive a citizen of one State of his right to order merchandise from another State at the risk of the seller as- to delivery, and it would prevent the citizen of one State from shipping into another State unless he assumed-the risk; it would subject contracts made by common carriers, and valid by the laws of the State where made, to the laws of another State, and it would remove from the protection of the interstate commerce clause all goods on consignment upon any condition as to delivery, express or implied. More to the point, and a more conclusive utterance, is this: “Besides, it would also render the commerce clause of the Constitution inoperative as to all that vast body of transactions by which the products of the country move in the channels of interstate commerce by means of bills of lading to the shipper’s order, with drafts for the purchase price attached, and many other transactions essential to the freedom of commerce, by which the complete title to merchandise is postponed to the delivery thereof.” He then reviews two cases (Caldwell v. North Carolina, 187 U. S., 422; R. R. v. Sims, 191 U. S., 441), which were taken from this Court by writs of error upon what Judge White says is the identical question, and both reversed. Reviewing these eases, and after stating that they are direct authorities against the present contention, and that it makes no difference how the shipment is made, whether c. o. d. or by bill of'lading to the shipper’s order, he proceeded as follows: “In R. R. v. Sims, 191 U. S., 441, 48 L. Ed., 254, 24 Sup. Ct. Rep., 151, these were the facts: A resident of North Carolina ordered from a corporation in Chicago a sewing machine. The machine was shipped under a bill of' lading to the order of the buyer, but this bill of lading was sent to tbe express agent at tbe point of delivery in North Carolina, witb instructions to surrender tbe bill on payment' of a e. o. d. charge. Tbe contention was that tbe consummation of tbe transaction by tbe express agent in transferring tbe bill of lading upon payment of tbe c. o. d. charge was a sale of tbe machine in North Carolina, which subjected tbe company to a license tax. Tbe contention was held untenable. Calling attention to tbe fact that tbe contract of sale was completed as a contract in Chicago, and after reviewing some of tbe authorities on tbe subject of interstate commerce, tbe Court said (p. 450, L. Ed., p. 258, Sup. Ct. Rep., p. 154): “Indeed, tbe cases upon this subject are almost too numerous for citation, and tbe one under consideration is clearly controlled by them. Tbe sewing machine was made and sold in another State, shipped to North Carolina in its original package for delivery to tbe consignee upon payment of its price. It bad never become commingled witb tbe general mass of property within tbe State. While technically tbe title of the' machine may not have passed until tbe price was paid, tbe sale was actually made in Chicago, and tbe fact that tbe price was to be collected in North Carolina is too slender a thread upon which to bang an exception of tbe transaction from’ a rule which would otherwise declare tbe tax to be an interference witb interstate commerce.” He then shows tbe distinction between State laws interfering with tbe regulation of commerce which trench upon tbe domain exclusively -occupied by tbe Congress under tbe Constitution, and those which' do not so interfere, as in tbe case of a property tax laid on tbe article transported, when it has become at rest within tbe State, and, therefore, enjoys tbe protection of its laws, which is upheld upon tbe ground that tbe movement of merchandise from State to State, whilst constituting interstate commerce, is not an import in the technical sense of tbe Constitution, citing Steel and Wire Co. v. Speed, 192 U. S., 500 (48 L. Ed., 538). Tbe State may act also where tbe particular transaction aids rather than obstructs commerce. We need not enter upon a discussion of this view of tbe matter. Tbe whole subject was reviewed by us in Range Co. v. Campen, 135 N. C., 506; Harrill v. R. R., 144 N. C., 532. Construing tbe Wilson Act, tbe Court held in Wilkerson v. Rahrer, 140 U. S., 545 (35 L. Ed., 572), that it was coinpetent for Congress to provide that certain designated subjects of interstate commerce shall be governed by a rule which divests them of that character at an earlier period of time than would otherwise be the case, so as to subject them to the operation and effect of State laws, for instance, after delivery to the consignee of goods shipped to him from another State, and in Rhodes v. Iowa, 170 U. S., 412, approving the case of Wilherson v. Rahrer, it was decided that, whilst the Wilson Act caused liquors shipped into Iowa from another State to be divested of their character as articles of interstate commerce after their delivery in Iowa to the person to whom consigned, nevertheless the act did not authorize the laws of Iowa to be applied to such merchandise whilst in transit from another State and before delivery in Iowa. The Court, in Vance v. Vandercook Co., 170 U. S., 438 (42 Ed., 1100), considering the Wilson Act and the previous decisions applying it, with reference to the validity of the dispensary law of South Carolina, held that it was not an interference with interstate commerce, in so far as it took charge, in behalf of the State, of the sale of liquor within its borders, and made such sale a source of revenue. In so far, however, as the State law imposed burdens on the right to ship liquor from another State to a resident of South Carolina intended for his own use, and not for sale within the State, the law was held to be repugnant to the Constitution, because the Wilson Act, whilst it delegated to the State plenary power to regulate the sale of liquors in South Carolina shipped into the State from other States, did not recognize the right of a State to prevent an individual from ordering liquors from outside of'the State of his residence for his own consumption, and not for sale. The principle settled by these cases was also approved and applied in Brewing Co. v. Crenshaw, 198 U. S., 17 (49 L. Ed., 925), and in Delamater v. South Dakota, 205 U. S., 93 (51 L. Ed., 724). The cases we have just cited involved the validity of State liquor laws, and they adhere to the rulings in Caldwell v. North Carolina, 187 U. S., 622 (47 L. Ed., 336), and R. R. v. Sims, 191 U. S., 441 (48 L. Ed., 254), that regardless of the method of collecting tbe purchase money for the liquor ordered in one State to be transported from another, whether by a c. o. d. shipment, by instructions to the carrier to collect, or by draft with bill of lading attached, the contract, in determining the character of the transaction and its protection, under the Federal laws, against State interference, must be considered as made in the foreign State, although the consignee must pay the purchase money before receiving the package, the only change made by recent statutes being that by the Wilson Act the goods are subjected to the operation and effect of State laws on arrival, which includes delivery to the consignee, and not before, and under Federal Penal Code, sec. 239, the carrier is restricted in the sphere of his action to the “actual transportation and delivery” of the goods, and cannot act for the buyer or seller for the purpose of making or consummating the sale, nor can he collect the purchase money of the buyer or for the seller. In other respects, the principle of the Caldwell and Sims cases is still in force. It will be observed, on comparison of the two cases, that R. R. v. Sims, sufra, and this case are substantially and in principle alike. In the Sims case the goods were shipped under a bill of lading to the order of the buyer and sent to the agent with instructions to surrender it on payment of the amount due by the buyer. In the present case, Carl Spencer, the consignee, was entitled to the delivery of the goods when he had paid the price for them and presented the bill of lading. The contract of sale was completed on acceptance of his offer to buy the liquor, and this was done at Richmond, Ya. The Supreme Court of the United States, in the cases we have cited, and others, has so regarded the transaction and treated the'remittance of the draft, with bill of lading attached, for collection, as a mere security for the purchase money. As the decision of this question is necessarily involved in determining whether this is interstate commerce, we must defer to fhe decisions of the highest Federál court as being authoritative and binding upon us, whether or not we agree in its reasoning or conclusion. It is the supreme law to us, under our Constitution, and because -of our allegiance to the Federal Government, when acting within the legitimate scope of its powers and its own. Constitution and laws. “Every citizen o£ this State owes paramount allegiance to the Constitution and Government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.” Const, of North Carolina, Art. I, sec. 5. This Court has been twice reversed, as we have said, in passing upon this question (Caldwell v. North Carolina, supra, and R. R. v. Sims, supra), and we should, therefore, be careful that we do not depart from what we have thus learned, but follow the doctrine clearly established by the higher court.

It appears in this case that Carl Spencer bought the liquor for his own consumption, and there is no suggestion that he intended to resell. Under Rhodes v. Iowa, supra, he was entitled to receive the package' of liquor upon tendering the bill of lading, and not until it had been delivered to him could it be subjected to the “operation and effect” of our laws, not even by force of the Wilson Act.

We have not laid any stress upon the fact that, in the eases we have cited, the Court has reserved the question, whether Congress has the power to prohibit the transportation of an article of commerce, including liquor, and its delivery to the consignee, though 'it might forbid its sale thereafter, even in the original package. In this connection, we may appropriately quote what is said on this subject in Delamater v. South Dakota, 205 U. S., 93 (51 U. Ed., 724): “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. . . . The rulings in the previous cases to the effect that, under the Wilson Act, State authority did not extend over liquor shipped from one State into another until arrival and delivery to the consignee at the point of destination, were but a recognition of the fact that Congress did not intend, in adopting the Wilson Act, even if it lawfully could have done so, to authorize one State to exert its authority in another State by preventing the delivery of •liquor embraced by transactions made in such other State.” This but emphasizes the fact that where the shipment of the liquor is made by the seller, in one State, to the buyer in another, for his own use and consumption, the transaction is interstate commerce, which no Federal law has permitted to be regulated or interfered with by State action, even though the purchase money may be collected through the medium of a draft with the bill of lading attached thereto.

Our conclusion is that, within the meaning of the commerce clause, the sale in this case was completed in Virginia, and not in this State; that the shipment and delivery of the liquor to Oarl Spencer, including the dealing with respect to the draft and bill of lading, constituted interstate commerce, whatever our own decisions may be as to the state of the title, and, therefore, that our laws were not violated. "We submit to the ruling of the Supreme Court of the United States, which compels us to so consider the question involved.

No error.