State v. Patterson.

47 S.E. 808, 134 N.C. 612, 1904 N.C. LEXIS 136

Opinions

DOUGLAS. J., dissenting. The defendant is indicted for selling spirituous liquor to one Guess in the town of Durham, where such sale is prohibited by virtue of an election had under the provisions of chapter 233, Laws 1903.

The special verdict finds that the defendant was not a druggist and had no license to sell spirituous liquor within the city of Durham; that he resided in Roxboro, where he had license to sell spirituous liquor; that Guess sent the defendant two dollars by mail with an order to ship said Guess at Durham one gallon of corn whiskey by express, charges prepaid, which the defendant did, and the whiskey was delivered to Guess in Durham; that said Guess was not a druggist, nor was said liquor sold to him upon the prescription of a regularly practicing physician.

The point presented therefore is whether this was a sale at Roxboro, where the liquor was delivered to the carrier by the defendant for transportation to Guess, or was it a sale at Durham, where it was received by Guess and where such sale was prohibited by law.

Laws 1903, ch. 349, sec. 2, provides: "That the place where delivery of any spirituous, malt, vinous, fermented or other intoxicating liquors is made in the State of North Carolina shall be construed and held to be the place of sale thereof, and any station or other place within said State to which any person, firm, company or corporation shall ship or convey any spirituous, malt, vinous, fermented or other intoxicating liquors for the purpose of delivery or carrying the same to a purchaser shall be construed to be the place of sale; provided this section shall not be construed to prevent the delivery of any spirituous, malt, vinous, fermented or other intoxicating liquors to (614) druggists in sufficient quantities for medical purposes only."

This section is explicit that the place of actual delivery to the buyer or to which it shall be shipped for delivery to him "shall be construed tobe the place of sale." It is contended that this provision does not have the effect of the plain purport of the words used by the law-making power because:

1. This section two is found in a statute entitled "An act to prohibit the manufacture, sale and importation of liquors in Cleveland, Cabarrus, Mitchell and Gaston Counties." Formerly the caption of an act was not at all considered to any extent whatever in construing it for reasons given in S. v. Woolard,119 N.C. 779, but the modern doctrine is that when the language of the statute is ambiguous the courts can resort to the title as aid in giving such act its true meaning, but that this cannot be done when the language used is clear and unambiguous. Randall v.R. R., 107 N.C. 748; 11 L.R.A., 460; S. c., 104 N.C. 410;S. v. Woolard, 119 N.C. 779; Hines v. R. R.,95 N.C. 434; 59 Am. Rep., 250; Blue v. McDuffie, 44 N.C. 131. To like purport in Hadden v. Collector, 72 U.S. 107, Mr.Justice Field uses the following language: "At the present date the title constitutes a part of the act, but it is still construed as only a formal part; it cannot be used to extend or to restrain any positive provisions in the body of the act." The language of section two is "That the place where delivery of any spirituous, malt, vinous, fermented or other intoxicating liquors is made in the State ofNorth Carolina shall be construed and held to be the place of sale thereof." . . . This provision is positive in its character, and its operation cannot be restrained by any reference to the title of the chapter. In the sections of chapter 349, other than sections 1 and 2, there is no reference to the place in which the act is to be operative, and hence by reference to the title they are to be applied only to the four counties (615) therein named. Section 1 is specifically made operative in the counties therein named, and is to take effect at a different date, and section 2 is made operative as to the sale of any spirituous or intoxicating liquors anywhere in the State, and as to them the title cannot be used to restrict or extend the meaning of the explicit, clear and unambiguous language used.

It is well settled, says Ruffin, C. J., in Humphries v. Baxter,28 N.C. 439, "That one part of a statute may be public in its nature while another is local and private." Part of a statute may be local and another of general application; part may be a public statute of which the court will take judicial notice and another part a private statute, which must be set up in the pleadings, and whether an enactment in a statute is general or local, public or private, is a question of law for the court, and is not determined by the nature of the act in which the enactment is found nor by its publication in the public or private statutes." The decisions are uniform as to this. S. v. Wallace, 94 N.C. 827; Durham v. R. R.,108 N.C. 401; S. v. Barringer, 110 N.C. 529; Hancock v. R. R., 124 N.C. at p. 225; Potter's Dwarris, 53.

2. It is further objected that if the statute had this meaning it is unconstitutional, but we are not pointed to any section of the Constitution which forbids the law-making power to designate the place of sale when the goods are shipped by the vendor to the vendee by a common carrier or other agency. It is true the courts have held that the place of sale is where the goods are delivered to the carrier, the latter being the agent of the vendee, thus making the constructive delivery, instead of the place of actual receipt of the goods by the purchaser, the place of sale. This rule is of comparatively modern origin, and at first (616) was held to apply only when the vendee designated the carrier by whom the goods were to be shipped. Daviesv. Peck, 8 D. E., 330. It has not been uniformly held, and is subject to many exceptions (1 Beach Cont., sec. 563; 2 Kent Com., 499), as the right of stoppage in transitu, and other exceptions. It is merely a rule of judicial construction, which was made in the absence of legislation, and is not protected by any constitutional provision from legislative power to change it. Especially can the Legislature change such rule in the exercise of its police power over the sale of intoxicating liquors when, as here, it can be readily seen that with the multiplication of common carriers and the speed and ease with which intoxicating liquors can be shipped, it would be a vain thing to prohibit the sale of liquor in any designated territory if vendors a short distance off can at will fill orders coming from within the prohibited territory upon the judicial fiction that the sale is complete upon delivery to the carrier, who is construed as the agent of the vendee. Whether it may or may not require an act of Congress to make a similar change as to liquor shipped into prohibited territory from points outside the State in nowise affects the power of the State to so provide when the shipment is from another point in the State. Rhodes v. Iowa, 170 U.S. 402. In O'Neill v. Vermont,144 U.S. 323, as construed by the same court in R. R. v. Simms,191 U.S. 441, it seems to be held that by virtue of the police power shippers of intoxicating liquors into a State from without its borders are subject to the same regulations as shippers from points within the State, it not being a matter of taxation upon interstate commerce. But that point is not now before us.

Where one upon one side of the line of a political division, as a State or county, shoots across the line and kills a person on the other side, the courts have held that the act is (617) committed where the shot is delivered by striking the body of the victim. S. v. Hall, 114 N.C. 909; 28 L.R.A., 59; 41 Am. St., 822; or if he commit false pretense by a letter delivered in another State the offense is committed in the State in which the letter is delivered. In re Sultan, 115 N.C. at p. 60; 28 L.R.A., 294; 44 Am. St., 433. A statute modifying the latter rule was sustained in S. v. Caldwell, 115 N.C. at p. 800; and in Com. v.McLoon, 101 Mass. 1; 100 Am. Dec., 89, in which Gray, J., said that the statute rested upon the general power of the Legislature to declare any willful or negligent act which causes an injury to persons or property in its territory to be a crime. The General Assembly has authorized the people of Durham to hold an election by virtue of which it is deemed injurious to sell intoxicating liquors in the limits of Durham, and by virtue of such exercise of the police power, and to make it effective, it is further enacted that the sale shall be deemed made in Durham (or elsewhere in this State) upon the delivery there of the injurious article to the buyer, just as in the case of a shot fired across the line, or a letter or poison so sent by the mail or other agency.

It was suggested on the argument, though the point is not made in the record, that the statute contravenes the Sixth Amendment to the United States Constitution, which provides that in all criminal prosecutions the accused shall be tried by a jury of the State and district where the crime shall have been committed. But aside from the fact that the law has construed the crime to be committed in Durham, where the forbidden article was actually delivered, instead of at Roxboro, where it was only constructively delivered, it is well known that the first ten amendments were all passed as restrictions upon the Federal Government and courts, and as a concession to States which reluctantly and hesitatingly had entered into the Union upon a pledge that such amendments should be submitted. That these amendments are restrictions upon the Federal Government, and not upon the States, has been (618) uniformly held in the United States Supreme Court. S. v.Caldwell, 115 N.C. at p. 803, and cases there cited; Fox v. Ohio,46 U.S. 410; Cook v. U.S., 138 U.S. 157; Barron v. Baltimore,32 U.S. 343; Spies v. Illinois, 123 U.S. 131, and there are numerous others. Twitchell v. Com., 74 U.S. 321; 2 Tucker Cons., sec. 325, and cases collected in 3 Rose's notes, 368-372. In Barron v. Baltimore,supra, Marshall, C. J., referring to the first eleven amendments, said: "These amendments contain no expression indicating an intention to apply them to the State governments. This Court cannot so apply them." Upon the special verdict the defendant should be adjudged guilty.

Reversed.