State v. Koontz
| Decision Date | 16 July 1918 |
| Citation | 204 S.W. 1086,275 Mo. 475 |
| Parties | THE STATE v. O. L. KOONTZ, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court. -- Hon. Ewing Cockrell, Judge.
Reversed.
J. W Jamison and J. S. Brierly for appellant.
(1) Martin had the right to order and have sent direct to him intoxicating liquors for his own or family use. Sec. 7228, R S. 1909; State ex rel. v. Brewing Co., 270 Mo. 109. (2) Inasmuch as the beer was both ordered and received by Martin in a lawful way and for a lawful purpose, neither the railway company, nor its agent, Koontz, violated any statute in connection with the transportation and delivery of it to Martin. State v. Brown, 188 Mo.App. 248; State v. Rosenberger, 212 Mo. 648; State v. Theodore, 191 S.W. 422; Southern Express Co. v. State, 66 So 115. (3) The trial court committed error in holding and declaring at the request of the State and of its own motion that Sec. 7228, R. S. 1909, was unconstitutional, and, therefore, void, and in giving, over appellant's objections and exceptions, declarations of law to that effect, and in refusing appellant's declaration in the nature of a demurrer to the evidence. State v. Theodore, and other authorities cited above.
Frank W. McAllister, Attorney-General, Henry B. Hunt, Assistant Attorney-General, J. R. Nicholson of counsel, for respondent.
(1) The title of an act is the conclusive index to the legislative intent; and the body of the act must be germane to the subject designated in title. Sec. 28, Art. 4, Mo. Cons.; Laws 1907, p. 231; City of Kansas v. Payne, 71 Mo. 162; State v. Coffee & Tea Co., 171 Mo. 642; State v. Burgdoerfer, 107 Mo. 30. (a) The title need not express limitations in the body of the act. 36 Cyc. 1029; Neuendorff v. Duryea, 69 N.Y. 557; Mt. Vernon Co. v. Frankfort Co., 111 Md. 568. (b) But where the title is restrictive, the act must be also. 36 Cyc. 1029; State v. Rawlings, 232 Mo. 557; Ex parte Knight, 52 Fla. 147; West v. State, 50 Fla. 160; Railway v. Byrne, 119 Tenn. 289. (2) Sec. 7228, R. S. 1909, has reference solely, to Section 7226. Said Section 7226 has been declared unconstitutional; hence, Section 7228 is unconstitutional and falls with Section 7226. State v. Rawlings, 232 Mo. 558; State v. Theodore, 191 S.W. 424. (3) The defendant, agent of the railway company, is liable, as he held for and delivered the goods to the consignee. Hays v. State, 13 Mo. 246; State v. Brown, 151 Mo.App. 351; State v. Boehler, 148 Mo.App. 620; State v. Handler, 178 Mo. 38.
The appellant was found guilty of delivering liquor to another person, in violation of Section 7227, Revised Statutes 1909. He claimed in defense that he was protected by the exception mentioned in Section 7228. The Circuit Judge held that the latter section afforded no protection, because unconstitutional, and the appeal was to this court on account of the constitutional question.
The sections mentioned, together with Section 7226, are a part of the dramshop law of this State, enacted in 1907. The Act of 1907 contained three sections which are now sections 7226, 7227 and 7228, Revised Statutes 1909 (Laws 1907, p. 232), as follows:
In the Revision of 1909, the words "this act" were changed to read (Sec. 7228) "the two next preceding sections."
There was an agreed statement of facts in the circuit court, which set out that the Local Option Law was in force in Cass County; that the defendant, O. L. Koontz, was agent of the Missouri, Kansas & Texas Railway Company, and as such delivered one case of beer to one Charles Martin in Cass County, "for the personal use of said Charles Martin," and that "said liquors had been ordered by the said Charles Martin of and from George Muehlbach Brewing Company, a liquor dealer at Kansas City, Missouri," and were by that company consigned to the said Charles Martin by a freight shipment over the lines of the said Missouri, Kansas & Texas Railway Company.
I. The defendant claims that he was within the proviso of Section 7228, because the liquor which he delivered was ordered for the personal use of Charles Martin to whom he delivered it. The Circuit Court held that section unconstitutional, because by its terms the proviso related only to Section 7226; that Section 7226 having been declared unconstitutional by this court in the case of State v. Rawlings, 232 Mo. 544, 134 S.W. 530, the proviso therefore would fall with the section to which it relates. The reason Section 7226 was declared unconstitutional was because the subject-matter covered by that section was not clearly expressed in the title of the bill when the Act of 1907 was passed. It is only necessary to refer to the Rawlings case for an explanation of the ruling.
Now it is obvious if Section 7228 refers only to Section 7226, then it does not matter for the purpose of this case whether it is unconstitutional or not, because this case arises under Section 7227, which was declared in the Rawlings case to be constitutional. But if 7228 relates to 7227, and provides an exception to the operation of that section as well as of 7226, then to that extent it is not necessarily unconstitutional, for a statute may be unconstitutional as to part of its subject-matter and valid in its application as to other parts. [6 R. C. L., p. 130.] It is important, therefore, not only to determine whether Section 7227 applies to this case, but also whether Section 7228 relates, as a proviso, to Section 7227 as well as to Section 7226.
II. Doubtless the statute under consideration was enacted to reinforce the Local Option Law. Already Section 7243, Revised Statutes 1909, made it unlawful for any person in a Local Option county to "directly or indirectly sell, give away, or barter in any manner whatever any kind of intoxicating liquors." This language is comprehensive enough to cover every case where the ownership of property of that kind is passed from one to another; intoxicating liquor could not be transferred by sale or by gift, directly or indirectly, in any manner whatever. All that remained of the traffic in such liquors, not prohibited by the statute, was the transfer of possession from one person to another, and the keeping for the use of another person, without a change of ownership.
The Act of 1907 then evidently was intended to reach every case of such transfer. Section 2 (7227) covers the case of a person who keeps or delivers liquor for another person, or to another person whether or not title or right of property is transferred by the act. This would include the case of any person who acts as the agent of the seller or the buyer, when the title has already passed.
This court construed the Local Option Law several times before Act of 1907 was passed. It was held in several cases that where intoxicating liquor was shipped by a common carrier, from a county or city in the State where it was lawful to sell it, to some person in a Local Option county, the shipper was not guilty of a violation of the law, because the "delivery" was at the point of shipment where it was lawful to sell it, and not at the point of destination where it was unlawful to sell it, that the carrier was the agent of the purchaser and not of the seller. [State v. Wingfield, 115 Mo. 428, 22 S.W. 363.] This was held to be the case even where the liquor was consigned C. O. D. [State v. Rosenberger, 212 Mo. 648, 111 S.W. 509, l. c. 654, 111 S.W. 509.] Under those rulings the delivery to Martin was in Kansas City where he ordered the beer consigned to him. The carrier then became and was his agent in carrying the liquor from Kansas City to Cass County, where he received it. It has been held that delivery to the purchaser by the purchaser's own agent, is a violation of the act, as will be seen by the cases cited below. The defendant was guilty of the violation of Section 7227, unless Section 7228 recites an exception to its operation.
III. The case of State v. Theodore, 191 S.W. 422, cited by respondent, was where the defendant was charged with a violation of Section 7227. He kept and stored a quantity of liquor in Barton County. This court reversed a conviction for violation of Section 7227 on the ground that the liquor which he kept and stored was not for delivery to any person in Barton County, a Local Option county, but was stored and kept for the purpose of conducting a mail order business and delivery in Kansas. The opinion indicated that the section (7228) does not constitute a proviso to Section 7227, and held the defendant not guilty, not because he was protected by Section 7228, but because his act is not covered by Section 7227. The observations regarding Section 7228 were obiter and the majority of the court concurred only in the result.
This court, in the case of State v. Burns, 237 Mo. 216 140 S.W. 871, l. c. 223, 140 S.W. 871, held the defendant guilty on this state of facts: He was going from Mt. Vernon, Lawrence County, to a neighboring town, when a friend named Hixon handed him a half dollar and requested him to purchase a...
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