State v. Fitzpatrick

• Decision Date: 07 January 1888
• Citation: 11 A. 767,16 R.I. 54
• Parties: STATE v. FITZPATRICK.
• Court: Rhode Island Supreme Court

11 A. 767

16 R.I. 54

STATE

v. FITZPATRICK.

Supreme Court of Rhode Island.

January 7, 1888.

Complaint against William Fitzpatrick for keeping intoxicating liquors "for the purpose of sale" in violation of the statute. The case is brought here from the Tenth judicial district by certificate on a constitutional question.

Asst. Atty. Gen. Clarence A. Aldrich, for the State. Hugh J. Carroll, for defendant.

DURFEE, C. J. This case comes before us from the district court of the Tenth judicial district by certificate on a constitutional question. It is a complaint under Pub. Laws E. I. cc. 538, 634, against the defendant for keeping, without lawful authority, intoxicating liquors "for the purpose of sale," in violation of chapter 634, § 1, in amendment of chapter 538, § 1, charging the offense substantially in the language of the statute. In the district court, the defendant made the following motion, to-wit: "The defendant moves that the above-entitled complaint be dismissed, because it is brought under section 1, c. 634, Pub. St., which attempts to prohibit the keeping for the purpose of sale of any of the liquors enumerated in said section, without making any distinction as to whether the sale is to be within or without this state; and he claims that he has a right to keep the same for the purpose of sale without this state. Article 1, § 8, Const. U. S." The district court overruled the motion, and, having found the defendant guilty, has certified the question involved in it to this court for decision.

The first section of chapter 634, so far as it is necessary to recite it for the purposes of the question, is as follows, to-wit: "No person shall manufacture or sell, or suffer to be manufactured or sold, or keep, or suffer to be kept, on his premises or possessions, or under his charge, for the purpose of sale, any ale, wine, rum, or other strong or malt or intoxicating liquors, a part of which is ale, wine, rum, or other strong or malt or intoxicating liquors, unless as hereinafter provided." The corresponding sections in earlier statutes, whether license or prohibitory, contained the words "within this state" after the words "for the purpose of sale;" thus making the keeping illegal only when it was for the purpose of selling the forbidden liquors within the state. The defendant contends that, in consequence of the alteration, the keeping is prohibited, if the liquors are kept in the state for the purpose of sale, even though they are intended to be sold out of the state, and that the section is therefore repugnant to section 8, art. 1, Const. U. S., which confers upon congress a variety of powers, and, among them, power "to regulate commerce with foreign nations, and among the several states."

It will be well to determine the scope and import of the question thus raised before we proceed to consider and decide it. First, then, when is it that liquors, which are in the possession of a person in this state, are kept by him for the purpose of sale, within the meaning of the statute? They are clearly not so kept when they are kept by him for his own use without any intention of selling them. Suppose he has the liquors in the state in the act of transporting them through this to another state, for the purpose of selling them in the latter, are they then being kept by him for the purpose of sale within the meaning of the statute? We think not, for though, in a general sense, he keeps such liquors for the purpose of sale, it is not the purpose for which he is keeping them in this state; the purpose for which he keeps them here being not sale, but transportation. If such a person were complained of for illegal keeping, the charge would be that in some particular town he did, without lawful authority, keep the liquors for the purpose of sale, and he could truly reply that he did not keep them in that town for that purpose, and was therefore not guilty. The same construction will hold if intoxicating liquors are kept in this state for storage simply, though they are intended to be ultimately carried elsewhere and sold. But if keeping in either of these ways is not prohibited, then the operation of section 1, in so far as it can interfere with commerce with foreign nations, and among the states, is extremely limited. We do not say, however, that liquors may not be kept in this state for the purpose of sale in other states in such way that the keeping would violate section 1. For instance, if intoxicating liquors were kept in this state to be sold on orders received or procured in other states or to customers coming from other states, we think the keeping would be within the prohibition, even though the sales were meant not to be completed in this state. In such a case, the place of keeping would be the headquarters of the traffic, or at least the place from which, if not at which, the sales would be made. Making the sales would be the purpose for which the liquors were kept there, and we think the general assembly must be held to have intended that no such place should be tolerated in the state. But no other way occurs to us in which liquors not intended for sale in this state can be kept here so that the keeping would be within the prohibition of section 1. The question presented, then, is whether, because such keeping is prohibited, section 1 is in conflict with the constitution of the United States. It will be seen that the question as presented assumes that the prohibition, if it be unconstitutional as it applies to intoxicating liquors kept in this state for sale elsewhere, is likewise unconstitutional as it applies to such liquors kept in this state for sale within it. This is not clear to us. State v. Amery, 12 R. I. 64. Nor are we clear that the question presented can be properly raised by a mere motion to quash. Mugler v. Kansas, 8 Sup. Ct. Rep. 273. But, passing these points, which have not been argued at the...