State v. J. P. Bass Pub. Co.

• Decision Date: 15 July 1908
• Citation: 71 A. 894,104 Me. 288
• Parties: STATE v. J. P. BASS PUB. CO.
• Court: Maine Supreme Court

71 A. 894

104 Me. 288

STATE

v. J. P. BASS PUB. CO.

Supreme Judicial Court of Maine.

July 15, 1908.

(Official.)

Agreed Statement from Bangor Municipal Court.

The J. P. Bass Publishing Company was convicted of publishing advertisements of intoxicating liquors. Submitted on the agreed statement. Judgment for the State.

Complaint to the Bangor municipal court in the city of Bangor, for an alleged violation of the provisions of Rev. St. c. 29, § 45, and which said section reads as follows:

"Whoever advertises or gives notice of the sale or keeping for sale of intoxicating liquors, or knowingly publishes any newspaper in which such notices are given, shall be fined for such offense the sum of twenty dollars and costs, to be recovered by complaint. One-half of said fine shall be paid to the complainant and one-half to the town in which said notice is published."

The body of the complaint is as follows: "Henry N. Pringle, of Waterville, in the county of Kennebec, on the seventeenth day of September, A. D. one thousand nine hundred and six, in behalf of said state, on oath, complains that the J. P. Bass Publishing Company, a corporation organized under the laws of Maine and doing business in said Bangor, in the county of Penobscot, is the owner and publisher of a certain newspaper called the Bangor Daily Commercial, printed and published in said Bangor; that Joseph P. Bass, M. Robert Harrigan, and Frederick H. Strickland, all of said Bangor, are the owners of all the stock of said corporation, and were the officers and directors thereof on the tenth day of August, A. D. one thousand nine hundred and six, and the said Joseph P. Bass, M. Robert Harrigan, and Frederick H. Strickland, as such officers and directors, did unlawfully and knowingly cause said newspaper to be printed and published in said Bangor, on the tenth day of August, A. D. one thousand nine hundred and six, in which said newspaper on said tenth day of said August a certain notice or advertisement of the sale and keeping for sale of intoxicating liquors was printed and published in the words and tenor following, to wit: [Here follows a fac simile of the liquor advertisement of Chas. Gallagher & Co., of Boston, Mass., printed in the said Bangor Daily Commercial August 10, 1906, stating, among other things: 'Send us $3.00, and we will ship you in a plain sealed case, express prepaid, with no marks to show contents, four full quarts of Gilbert Club Pure Rye Whiskey. Put it to the test, and, if not satisfied, send it back. We will stand the expense—none whatever to you—and your money cheerfully refunded'], against the peace of said state, and contrary to the form of the statute in such case made and provided.

"Wherefore the said Pringle prays that the said Bass, Harrigan, and Strickland may be apprehended and held to answer to this complaint, and dealt with relative to the same, as law and justice may require."

On this complaint a warrant in due form of law was issued by said municipal court, and the defendants were duly arraigned in said municipal court, where they pleaded not guilty, and waived a hearing, and thereupon the judge of said municipal court adjudged them guilty, and imposed a fine of $20 and costs on each defendant, from which judgment an appeal was taken by all the defendants to the February term, 1907, of the Supreme Judicial Court, Penobscot county.

At said February term of said Supreme Judicial Court an agreed statement of facts was filed, and the case was then reported to the law court with the following stipulation: "Judgment to be rendered by the law court as the facts and the law of the case may require."

The agreed statement of facts is as follows:

"It is agreed that at the time of said alleged offense said newspaper, the Bangor Daily Commercial, including the plant, consisting of printing presses, boiler, engine, linotype machines, cases, type, paper, and printing appliances, was owned and that said newspaper was published by the 'J. P. Bass Publishing Company,' a corporation duly organized and existing under the laws of this state, and having a capital stock fully paid in of forty thousand dollars ($40,000), and that said capital stock is and was all owned at the time of the commission of the alleged offense by the respondents above named, to wit, the 10th day of August, A. D. 1906, and that the notice of the sale or keeping for sale of intoxicating liquors above named and as described in the complaint and warrant was published with the knowledge of and by the direction of the said Bass, Strickland, and Harrigan.

"It is further agreed that Chas. Gallagher & Co., whose advertisement was alleged to have been published in the Bangor Daily Commercial, carried on business in the commonwealth of Massachusetts, and was legally authorized under the laws of said commonwealth to sell and keep for sale intoxicating liquors.

"It is further agreed that said advertisement was published in said Bangor Daily Commercial in pursuance of a contract made and entered into in Boston aforesaid through the advertising agency of Julius Matthews between the said Gallagher & Co. and the said Julius Matthews acting on behalf of and as agent of said J. P. Bass Publishing Company."

Note.—April 28, 1905, proceedings were instituted against the same personal defendants as in this case for an alleged violation of the provisions of the aforesaid section 45, and that case was also reported to the law court. See State v. Bass et al., 101 Me. 481, 64 Atl. 884.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and CORNISH, JJ.

H. H. Patten, Co. Atty., for the State.

F. H. Appleton and Hugh R. Chaplin, for defendant.

EMERY, C. J. Chapter 29 of the Revised Statutes, popularly known as the "Prohibitory Law," contains in section 45 the following prohibition: "Whoever advertises or gives notice of the sale or keeping for sale of intoxicating liquors, or knowingly publishes any newspaper in which such notices are given, shall be fined for such offense the sum of twenty dollars and costs to be recovered by complaint."

The defendants knowingly published August 10, 1906, at Bangor, in Penobscot county, a newspaper, the Bangor Daily Commercial, in which was given a notice and advertisement that intoxicating liquors were sold and kept for sale at 297 Congress street, in Boston, Mass., by Chas. Gallagher & Co., who were then carrying on business in Massachusetts, and were legally authorized under the laws of that commonwealth to sell and keep for sale intoxicating liquors. Their advertisement in question was published in the Bangor Daily Commercial in pursuance of a contract made in Boston, Mass., between them and an advertising agency there acting as the agent of the defendants.

The defendants claim that their act of publishing the advertisement was lawful upon two grounds: (1) That the statute is susceptible of the construction that it only prohibits notices or advertisements of liquors for sale or kept for sale within this state, and, being a penal statute, should therefore receive this strict construction; (2) that if it should be construed as prohibiting notices or advertisements of liquors for sale or kept for sale in another state where such sale and keeping for sale are lawful, as in this case, then so construed the statute is so far nullified by that clause of the Constitution of the United States, known as the "commerce clause," which confers upon Congress the power "to regulate commerce with foreign nations and among the several states and with the Indian Tribes." Const. U. S. art. 1, § 8, par. 3.

1. In construing the statute, penal though it be, the intent and object of the Legislature in enacting it are to be ascertained and given effect if the language be fairly susceptible of such a construction. As said by the Massachusetts court per Shaw, C. J., in a criminal case (Commonwealth v. Kimball, 24 Pick. 360, 370): "It is unquestionably a well-settled rule of construction, applicable as well to penal statutes as to others, that, when the words are not precise and clear, such construction will be adopted as shall appear most reasonable and best suited to accomplish the objects of the statute." In a criminal case (U. S. v. Hartwell, 6 Wall. 385, 18 L. Ed. 830) the court at page 396 of 6 Wall. (18 L. Ed. 830), said of the penal statute there in question: "The proper course in all cases is to adopt that sense of the words which best harmonizes with the context and promotes in the fullest manner the policy and objects of the Legislature. The rule of strict construction is not violated by permitting words to have their full meaning, or the more extended of two meanings, as the wider popular, instead of the more narrow technical one; but the words shall be taken in such a sense, bent neither one way nor the other, as will best manifest the legislative intent."

The statute in this case is but a part of the legislation of this state upon the subject-matter of the sale and...