Hart v. State

• Decision Date: 18 December 1905
• Citation: 39 So. 523,87 Miss. 171
• Court: Mississippi Supreme Court
• Parties: WILLIAM HART v. STATE OF MISSISSIPPI

39 So. 523

87 Miss. 171

WILLIAM HART v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

December 18, 1905

FROM the circuit court of Lincoln county, HON. MOYSE H. WILKINSON Judge.

Hart the appellant, was indicted, tried, and convicted for acting as the agent of the seller in effecting the unlawful sale of whisky in the city of Brookhaven--the sale of intoxicants being prohibited in Lincoln county, wherein Brookhaven is situate and of which it is the county seat--and appealed to the supreme court. The facts are stated in the opinion of the court.

The statute on which the prosecution was based is in the following words:

"1604. Acting as Agent, etc. (Laws 1890, p. 71).--If any person shall act as agent or assistant of either the seller or purchaser, in effecting the sale of any liquor, bitters, or drink the sale of which without license is unlawful under the provisions of this chapter, in any county, district territory, or municipality in which the sale of such liquor bitters, or drink is prohibited by law, he shall be guilty of a misdemeanor, and, on conviction, shall be punished by a fine of not less than twenty dollars nor more than one hundred and fifty dollars, and imprisoned in the county jail not less than one week nor more than three months."

Affirmed.

Brennan & Hannah, for appellant.

In the case at bar the sale of the liquor was consummated upon the delivery thereof to the express company at Ponchatoula,

La. Pearson v. State, 66 Miss. 510; State v. Flannagan, 38 W.Va. 53 (45 Am. St. Rep., 836); Herron v. State, 51 Ark. 133 (7 L. R. A., 184); State v. Shields (La.), 34 So. 673.

If Campbell, appellant's principal and partner, violated no law in making the sale in the state of Louisiana, he had the right, in the conduct of his business, to solicit orders here in effecting said sale. Upon such orders he had a legal right to deliver his goods to the common carrier in the state of Louisiana to be shipped into the state of Mississippi for delivery here. To deprive him of this right would be an attempt to interfere with and prohibit the importation of an article of commerce from one state to another, a principle which is condemned in the cases of Bowman v. Chicago & Northwestern Ry. Co., 125 U.S. (31 L.Ed. 700); Leisy & Co. v. Hardin, 135 U.S. (34 L.Ed. 128); State v. Fulker, 43 Kan. 247 (7 L. R. A., 187).

If the appellant's principal, or partner, under the authorities above cited, had the right of transportation and importation from one state to another, it carried with it the right to sell in such states. In the case of Brown et al. v. State of Maryland, 12 Wheat. (U. S.), 419 (6 L. ed., 678), the court said: "There is no difference in effect between a power to prohibit the sale of an article and a power to prohibit its introduction into the country. The one would be a necessary consequence of the other." This principle has been applied and upheld in the case of Leisy v. Hardin, supra.

In construing the question of agency, it has been held in the case of Beck v. State, 69 Miss. 217 (13 So. 835), that there is no agency in crime. If, then, Campbell committed no crime in Lincoln county, Hart, the agent of Campbell, could have committed none.

A regulation made in the exercise of the police power of the state cannot, under that guise, be made a direct burden and obstruction to interstate commerce. Brennan v. Titusville, 153 U.S. 287 (38 L.Ed. 719), and cases cited there. In the case of Caldwell v. State of North Carolina, 187 U.S. 622 (47 L.Ed. 336), the supreme court of the United States held that an ordinance requiring the agent of a nonresident portrait company to pay a license tax was invalid as an interference with interstate commerce. Stockard v. Morgan, 185 U.S. 27 (46 L. ed., 785), and cases there cited.

J. N. Flowers, assistant attorney-general, for appellee.

This is not a case of soliciting orders. Orders are mere offers to buy, are passed upon by the house for which they are taken and to which the offers to buy are made, and when the orders are passed upon by the house and accepted, and the goods delivered to the carrier, the contract is completed.

Hart, the appellant, not only received orders to be filled in Louisiana, but collected the money then and there in Lincoln county. He did not simply bring the buyer and seller together, but, acting for the seller, closed the deal on the spot. He did not deliver the liquor until he went home or sent in the orders, but he made the contract in Lincoln county. It was not the mere taking of orders subject to the approval of the dramshop keepers at Ponchatoula, but the making of contracts to be filled by the dramshop in Louisiana. Nothing remained to be done but to deliver the intoxicants. The contract was not made in Louisiana, but in Mississippi. The delivery of the intoxicants was the execution of the contract. The contract was made by the principal through his agent in Lincoln county.

Appellant was an agent with large powers. He not only received proposals to buy, in the shape of orders to ripen into contracts if accepted by the principal, but he made the contract himself, receiving the purchase price, and then had the liquors delivered from the dramshop of his principal.

Under counsel's own argument, appellant made a contract in violation of sec. 1604. He made one which his principal himself could not legally make at that place. Campbell, the principal, could not come into Mississippi and close contracts with persons for the sale of liquors, although he might deliver intoxicants from his dramshop in Louisiana.

If we accept the issue tendered by counsel for appellant and admit that the character of the contract determines the guilt or innocence of the accused, the judgment must be affirmed.

We take it that counsel will not contend that the commerce clause of the federal constitution would be violated by the enforcement of our statute against one who makes his contracts in Lincoln county, although his intoxicants be in another state at the time and have to be delivered from such other state. In fact, counsel labor to show that the weight of authority is that where orders are taken by a solicitor and sent to his house in another state and they are accepted, the contract is made in the state where the orders are received and accepted. By this argument they recognize the proposition that the commerce clause of the federal constitution does not protect one who makes his contracts in prohibited territory, and that a state may prohibit the making of certain contracts within the state, although it is to be executed by one of the parties by shipping goods which are at the time in another state, and must, of necessity, be interstate commerce while being transported to the buyer.

In the case of O'Neil v. Vermont, 144 U.S. 323 (36 L.Ed. 450), the supreme court of the United States accepted the holding of the Vermont supreme court to the effect that, under circumstances of the kind above enumerated, the contract was made where the order was given, and held that the decision of the question as to where the contract was made did not involve any federal question. But in Express Co. v. Iowa, 196 U.S. 133 (49 L.Ed. 417), the same court said that if, in deciding whether the commerce clause of the federal constitution had been violated, it became necessary for that court to declare the situs of the contract, then the finding of the state court would not be accepted as final. In that case the supreme court of Iowa had followed previous holdings of that court to the effect that in such cases the contract was made at the place where the order was taken. Taking this view of the case, the Iowa court held that the commerce clause of the federal constitution was not involved, or at least was not violated. The supreme court of the United States on appeal, the federal question having been properly raised and presented to that court, refused to accept as final the finding of the supreme court of Iowa that the contract under consideration was made in Iowa, and not in Illinois, but took up the contract and decided that it was made in Illinois, and hence the enforcement of the Iowa statute in that case was violative of the commerce clause of the federal constitution. The court treated the contract question as being vital.

OPINION

TRULY, J.

We experience no difficulty in arriving at the conclusion that Code 1892, § 1604, 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....