R. M. Rose Co. v. State

• Decision Date: 01 October 1909
• Citation: 65 S.E. 770,133 Ga. 353
• Parties: R. M. ROSE CO. v. STATE.
• Court: Georgia Supreme Court

65 S.E. 770

133 Ga. 353

R. M. ROSE CO. v. STATE.

Supreme Court of Georgia

October 1, 1909

Syllabus by the Court.

A criminal accusation charging that the defendant, who lived in Chattanooga, Tenn., solicited orders for the sale of intoxicating liquors by a circular sent through the United States mail from Chattanooga to a person living in this state, where the sale of intoxicating liquors is prohibited did not set forth any crime under Pen. Code 1895, § 428, and was subject to general demurrer.

Certified by Court of Appeals.

The R M. Rose Company was convicted of a violation of Pen. Code 1895, § 428, and appeals to the Court of Appeals. Case certified, and judgment that demurrer should have been sustained.

See also, 4 Ga.App. 588, 62 S.E. 117.

The Court of Appeals certifies to the Supreme Court that a decision of the following questions, within the purview of the constitutional amendment creating the Court of Appeals is necessary to the proper determination of the case, to wit:

"(1) Is section 428 of the Penal Code of Georgia unconstitutional and void as being repugnant to article 1, § 8, par. 3 (Civ. Code, § 5974), of the Constitution of the United States, in that said section of the Penal Code contains a prohibition of lawful interstate commerce, and is a burden thereon; also, is said section of the Penal Code of Georgia void, unconstitutional, and repugnant to the above-specified portion of the Constitution of the United States as applied to the present case, on the alleged ground that it undertakes to prohibit the solicitation through the United States mails, either personally or by agent, of the sale of spirituous, malt, or intoxicating liquors in any county of the state of Georgia where the sale of such liquors is prohibited by law, because it appears from the accusation in the above-stated case and from each of the counts thereof that defendant, a Tennessee corporation, engaged in business in the state of Tennessee, in pursuance of its Tennessee business, did personally and by agent, in the county of Fulton, a county wherein by law the sale of spirituous, malt, and intoxicating liquor is prohibited, solicit the sale of spirituous, malt, and intoxicating liquors, said sales to be consummated in Chattanooga, Tenn., such solicitation having been made by defendant sending to the prosecutor, Fletcher E. Maffett, from Chattanooga, Tenn., through the mails of the United States a circular letter advertising such liquors for sale, and by the words and terms of such circular letter soliciting said prosecutor to purchase of said R. M. Rose Company such liquors, one or either of them, such liquors to be purchased in Chattanooga in the state of Tennessee, and delivered to said prosecutor in Atlanta, Fulton county, Ga.; and that said soliciting circular was sent through the United States mail and duly delivered by the postal authorities of the United States to said prosecutor in Fulton county, Ga.?

"(2) Is section 428 of the Penal Code of Georgia unconstitutional and void because it contravenes article 1, § 8, par. 7 (Civ. Code, § 5974), of the Constitution of the United States, which provides that Congress shall have the power to establish post offices and post roads, on the alleged ground that 'it prohibits the solicitation of the sale of spirituous, malt, and intoxicating liquors by the mailing of circulars, and the transmission of the same by means of the United States mails from one state, and the delivery of the same by the postal authorities in another state to the sendee, incidental to the prosecution of a lawful interstate business, the transmission and delivery through the mails of the United States of such circulars not being prohibited by the Constitution and laws of the United States relative to the establishment of post offices and post roads, and the regulation of the postal service of the United States'?

"(3) Is section 428 of the Penal Code of Georgia void because it prohibits both interstate and intrastate soliciting of the sales of spirituous, malt, or intoxicating liquors in any county of Georgia where the sale of such liquor is prohibited by law, and therefore violates that provision of the United States Constitution which provides that 'Congress shall have the power to regulate commerce with foreign nations and among the several states and with the Indian tribes'?

"(4) Is section 428 of the Penal Code of Georgia void, in that it is inconsistent with the postal laws established by the Congress of the United States, and does it contain any provision inconsistent with the right of the United States to regulate or prescribe what may or may not be transported through the United States mails?

"(5) Is an accusation filed in the criminal court of Atlanta subject to general demurrer on the ground that it sets forth no offense under the law of this state, or is either count of said accusation subject to such demurrer, where said accusation is regular in form and charges the defendant (R. M. Rose Company) as follows: 'First count: The said R. M. Rose Company (said company being a nonresident of the state of Georgia, and engaged in business in the city of Chattanooga and state of Tennessee, and not in the state of Georgia), in said Fulton county, on the 1st day of March, 1908, did solicit personally the sale of spirituous, malt, and intoxicating liquors--said county being a county where the sale of such liquors is prohibited by law--by sending to deponent from Chattanooga, in the state of Tennessee, through the mails of the United States, a circular letter advertising such liquors for sale, and by the words and terms of said circular soliciting deponent to purchase of said R. M. Rose Company spirituous, malt, or intoxicating liqours, one or either of the same, the same, if purchased to be purchased by deponent's sending to R. M. Rose Company, from Atlanta, Fulton county, Ga., by mail, to Chattanooga, Tenn., an order or orders for said liquors, said liquors to be shipped by said R. M. Rose Company from Chattanooga in the state of Tennessee by express, and delivered by the express company to deponent at Atlanta, Fulton county, Ga. The said soliciting circular was sent through United States mail, and duly delivered by the postal authorities of the United States to deponent, in Fulton county, Ga., all of which was contrary to the laws of said state, the good order, peace, and dignity thereof. Second count: The said R. M. Rose Company (said company being a nonresident of the state of Georgia, and engaged in business in the city of Chattanooga and state of Tennessee, and not in the state of Georgia), in said Fulton county, on the 1st day of March, 1908, did solicit by agent the sale of spirituous, malt, or intoxicating liquors--said county being a county where the sale of such liquors is prohibited by law--by sending to deponent from Chattanooga, in the state of Tennessee, through the mails of the United States, a circular letter advertising such liquors for sale, and by the words and terms of said circular letter soliciting deponent to purchase of said R. M. Rose Company spirituous, malt, or intoxicating liquors, one or either of the same, the same, if purchased, to be purchased by deponent's sending to R. M. Rose Company, from Atlanta, Fulton county, Ga., by mail to Chattanooga, Tenn., an order or orders for said liquors, accompanied by an United States money order for the purchase price of said liquors, said liquors to be shipped by said R. M. Rose Company in the state of Tennessee by express, and delivered by the express company to deponent at Atlanta, Fulton county, Ga. The said soliciting circular was sent through the United States mail and duly delivered by the postal authorities of the United States to deponent in Fulton county, Ga., all of which was contrary to the laws of said state, the good order, peace, and dignity thereof."'

Anderson, Felder, Rountree & Wilson and Rosser & Brandon, for plaintiff in error.

C. D. Hill, Sol. Gen., Lowry Arnold, Sol., and D. K. Johnston, for the State.

BECK J.

In the view which we take, an answer to the last question propounded by the Court of Appeals controls the whole case. Did the criminal accusation set out an offense punishable by the laws of Georgia? The defendant, a nonresident company doing business in the state of Tennessee, sent from that state through the United States mail a circular letter to a resident of Georgia, advertising intoxicating liquors for sale in Tennessee. In this state there is a law prohibiting the sale of such liquors. The defendant was prosecuted under Pen. Code 1895, § 428, which is as follows: "If any person shall sell, or solicit, personally or by agent, the sale of spirituous, malt or intoxicating liquors, in any county where the sale of such liquors is prohibited by law high license or otherwise, he shall be guilty of a misdemeanor." A demurrer was interposed which was overruled, and the defendant assigned error on this ruling. The Constitution of the United States declares that Congress shall have power to regulate commerce "among the several states." Const. U.S. art. 1, § 8, par. 3. It has been declared by the Supreme Court of the United States that the states cannot prevent the importation of lawful subjects of interstate commerce. 17 Am. & Eng. Enc. Law (2d Ed.) 84, and cases cited; Schollenberger v. Pennsylvania, 171 U.S. 1, 18 S.Ct. 757, 43 L.Ed. 49. It has also been settled by decisions of that court that intoxicating liquor is a legitimate subject of interstate commerce. Rhodes v. Iowa, 170 U.S. 412, 18 S.Ct. 664, 42 L.Ed. 1088; 17 Am. & Eng. Enc. Law, 68, and citations; Adams Express Co. v. Kentucky, 214 U.S. 222, 29 S.Ct. 633, 53 L.Ed. 972. It has been said that "the negotiations in one state of sales of goods...