State v. Burlington Drug Co.

• Decision Date: 27 January 1911
• Citation: 84 Vt. 243,78 A. 882
• Parties: STATE v. BURLINGTON DRUG CO.
• Court: Vermont Supreme Court

78 A. 882

84 Vt. 243

STATE

v. BURLINGTON DRUG CO.

Supreme Court of Vermont. Chittenden.

Jan. 27, 1911.

Exceptions from Chittenden County Court; George M. Powers, Judge.

The Burlington Drug Company was convicted of illegally selling intoxicants, and it excepts. Exceptions overruled.

Argued before ROWELL, C. J., and MUNSON, WATSON, and HASELTON, JJ.

Henry B. Shaw, State's Atty., for the State.

Darling & Mower, for respondent.

HASELTON, J. The respondent, a corporation, was the holder of a liquor license of the "fourth class"; that is, it was licensed to sell intoxicating liquor at wholesale. While holding such license, it made a sale of certain cordials that were intoxicating liquor, of which it had furnished no samples to the Secretary of State for inspection, as it was required to do under the provisions of sections 5131 and 5132 of the Public Statutes. P. S. 5141, provides that a licensee of the fourth class who sells any liquor of a quality other than that of a sample furnished to the Secretary of State for inspection shall be fined for the first offense $200, and for each subsequent offense $500. The respondent was prosecuted under this section. The facts above stated were agreed upon, and the respondent was adjudged guilty, and was sentenced to pay a fine of $200, together with the cost of prosecution. "The respondent," to quote here from the bill of exceptions, "objected and excepted to the rendition of said judgment and imposition of sentence thereon on the ground that the several statutes prescribing the penalties and forfeitures for the offense alleged in the information are unconstitutional and void under the Constitution of the United States and of the state of Vermont, in that the penalties and forfeitures so prescribed are not proportioned to the offense, but are excessive, cruel, and unusual, contrary to the eighth and fourteenth amendments to the Constitution of the United States, and section 32 of chapter 2 of the Constitution of Vermont; and upon the further ground that said several statutes deprive the respondent of property without due process of law, and deny it the equal protection of the laws, in violation of the fourteenth amendment of the Constitution of the United States." The sections of the Public Statutes directly referred to in this exception are 5141, under which the respondent was convicted and fined, 5143, 5144, 5117, 5128, and 5131. The provisions of 5141, so far as they are relevant to this case, have been sufficiently stated. Section 5128 fixes the fee for a license of the fourth class at $750. Section 5143 provides that, if a licensee of the fourth class is found guilty of the offense of which the respondent was convicted, the Attorney General shall notify the Secretary of State of such conviction, and that the Secretary of State shall forthwith revoke the license. Section 5121, as construed by the respondent, disqualifies one whose license has been so revoked from thereafter holding a license. Sections 5117 and 5131, taken together, provide for the giving of a bond to the state by a licensee of the fourth class in the sum of $3,000. These sections will be further commented on. Section 5144 provides, among other things, that upon the conviction of a licensee of the fourth class of the offense of which the respondent was convicted the Attorney General shall at once proceed to collect the amount of the bond from the securities of the licensee. The respondent does not contend that the section under which the respondent was convicted is unconstitutional considered by itself and without reference to the other sections above referred to; but it contends that these other sections are intended to act automatically upon a conviction such as was had here, and that all the sections referred to must be construed together in determining the penalty prescribed for the offense, and that, when so considered, the aggregate penalty is disproportionate to the offense, and so disproportionate as to render the statutory provisions in question void on the ground of conflict both with the Constitution of this state and that of the United States.

The claim that the conviction of the respondent disqualifies it from hereafter holding a license is ill grounded. P. S. 5121, under which the claim is made, relates wholly to licenses by the board of license commissioners of the several towns. It provides that no license shall be granted to a person not a voter of the town, nor to a person under 25 years of age, nor to a person whose license in a town has been revoked. No. 145 of the Acts of 1906, which did not take effect until March 1, 1907, provided that licenses of the fourth class, licenses to sell at wholesale, should be granted not by the license commissioners of the town, but by the Secretary of State; and it provided that such licenses might be granted to citizens, or corporations, of this state, or of any other state, or of any other country. It provided that all fees for such licenses should be payable to the state, that the number of licenses which might be granted in a town should not be affected by the residence therein of licensees of the fourth class. It provided penalties for illegal acts by such licensees not corresponding to the penalties under the general liquor law. Various provisions applicable to other licensees are not applicable to those holding a license to sell only at wholesale to retail dealers; and, while the law provides that a license of the fourth class shall be revoked and the unused portion of the license fee shall be forfeited upon the conviction of the holder of the license of the offense of which the respondent was convicted, it stops short of providing that such licensee shall be disqualified from thereafter holding a license. The whole situation is made clear when No. 145, Acts 1906, which relates wholly to licenses of the fourth class, is read by itself. The revocation of the license without a repayment to the licensee of any portion of the sum paid by him for the license infringes no constitutional right, for the license is not a contract but a permit to sell subject to restrictions, and from its very nature is subject to revocation in consequence of a disregard of such restrictions, or in consequence of a charge of policy on the part of the government in respect to the exercise of the police power. State v. Gibbs, 82 Vt. 526, 74 Atl. 229, 24 L. R. A. (N. S.) 555. We do not think that the fine provided by statute for the offense of which the respondent was convicted, and the revocation of the license, treating it as an incident to the conviction, when considered together and treated as inseparable, contravene any provision of our state Constitution or of the federal Constitution.

The questions which arise in connection with the forfeiture of the bond of $3,000 are the ones to which the arguments of counsel have been chiefly directed. The provision of article 8, in amendment of the federal Constitution, forbidding excessive fines and cruel and unusual punishments, was not directed to, and does not operate upon, the state government. Pervear v. Commonwealth, 5 Wall. 475, 18 L, Ed. 608. After the adoption of the fourteenth amendment, the view was taken by Justices Harlan and Field, and perhaps by Mr. Justice Brewer, that by virtue of that amendment the protection guaranteed by the eighth was interposed against the state government. See dissenting opinions in O'Neil v. Vermont, 144 U. S. 323, 337, 366, 371, 12 Sup. Ct. 693, 36 L. Ed. 450. But this view did not prevail in the case just cited, and has not since been recognized. Jack v. Kansas, 199 U. S. 372, 26 Sup. Ct. 73, 50 L. Ed. 234; Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119; State v. Hodgson, 66 Vt. 134, 28 Atl. 1089. The provision of our state Constitution to which we have been particularly referred is that "all fines shall be proportioned to the offenses." Historically the provision of the federal Constitution has regard to the language of the Bill of Rights of 1689, while the provision of our Constitution respecting disproportionate fines reflects rather the language of chapter 14 of Magna Charta, where it is said that for a small offense a freeman shall not be amerced otherwise than according to the measure of such offense and for a great offense according to the magnitude thereof, and where it is said of earls and barons that they shall not be amerced except after the manner of their offenses, and that no ecclesiastic person shall be amerced except in accordance with the degree of his offense. See 1 Runnington's Ruffhead's Statutes at Large. Nathaniel Chipman, writing in 1792, says that the word "fines" as used in the constitutional provision now under consideration is not to be understood of pecuniary mulcts only, but that it is to be taken as synonymous with "punishments." N. Chipman, Reports and Dissertations, 134. This is said not in an opinion, but in one of the dissertations; but, in view of the influence of Nathaniel Chipman in the establishment of our institutions, the statement of his just referred to, might well be taken as au authoritative contemporaneous exposition of the meaning of the constitutional provision to which it relates. While the provision...