This case was reversed at a previous day of this term, and now comes before us on rehearing. We do not understand the State to seriously contend that the case should be affirmed, inasmuch as it appears to be conceded that the court's charge on the question of agency, especially in applying the law to the facts, is erroneous. However, the State does insist that the court's discussion of the act of the Twenty-seventh Legislature, p. 262, is dicta. On a review of the case *Page 493 we are inclined to agree with this contention, inasmuch as the facts of the case do not bring it either under the head of a C.O.D. sale, or a sale by solicitation. The act prescribes substantially, that in all contracts of sale and shipment of intoxicating liquor from any point in the State to any place within the State subject to local option, where the terms of such contract is C.O.D. or collect on delivery, that the same is and shall be a sale at the point where said goods are delivered and paid for. And further, that where orders are solicited for intoxicating liquors in local option territory, and such order is subsequently filled, the sale shall be at the place where said order was solicited. Here, as stated, the record shows that the liquor was paid for before shipment, and the shipment was not made C.O.D., consequently it can not be regarded as a C.O.D. shipment. The record further shows that appellant did not solicit the purchaser to buy the whisky, but that the purchaser applied to him; accordingly it was not a sale on solicitation. So that, in neither event does the act of the Legislature apply here. However, the court in its charge appears to have treated the sale as one or the other, or possibly as a combination of both; and the effort to apply this law to the facts of the case, without any qualification or suggestion to the jury as to how they were to determine the locus of this sale, constitutes, in our opinion, the error in the court's charge on this subject. For instance, he tells the jury that "A party assisting the seller to make a sale of intoxicating liquors in a local option territory in this State, where such sale has been prohibited, and is prohibited by law, violates the local option law, and even though he may so assist the seller with or without compensation." And "Any person who is agent for, or who is acting for or who is assisting a principal whose place of business is located outside a county in which the local option law is in force, makes a sale of intoxicating liquors in such county in which said law is in force, when he takes or accepts an order therein for intoxicating liquors, and the goods are shipped by his principal and received by the purchaser within such county in which the local option law is in force, in pursuance of such order." And the court then proceeds to group the facts, as he culled them from the evidence in the case, instructing the jury, if they should find such facts to exist to find defendant guilty. If the court in connection with these charges had instructed the jury in effect that they must find that the sale was made within the local option territory, that is, by the terms thereof the seller was to ship and deliver the same to the purchaser within the local option territory, and that it did not become the property of the purchaser until he received it in the local option territory, according to the terms of the contract, express or implied, then the sale would be within the local option territory; that is, that the sale was where the title to the property passed, and as test of this, if the goods were lost in transit, and before delivery, it would be the loss of the seller, and not of the purchaser, then the sale would be within *Page 494 the local option territory; otherwise not. But this was not done. And as was said in the original opinion, the charge of the court ignored this principle, and made appellant guilty if he acted as the agent of Clark in the sale of the goods in Red River County, regardless of the place of delivery and regardless of the consummation of the sale in that county. The State, in this connection refers us to Bogle v. State, 55 S.W. Rep., 830, cited in the original opinion, as sustaining its contention. The charges of the court were not discussed in that opinion, nor did the cease turn on the charge. Nor did we say, in the original opinion that the conviction could not be sustained on the facts.
We desire here to make a few observations with reference to our views on this question. The Constitution of 1876 (art. 16, sec. 20) authorized the Legislature to enact a law whereby the qualified voters of any county, etc., "may determine by a majority vote, "whether the sale of intoxicating liquors shall beprohibited within the prescribed limits." This section as amended in 1891 was only changed with reference to subdivisions, leaving the other parts unchanged. So we see that the framers of the Constitution only authorized the Legislature to pass a lawprohibiting the sale of intoxicating liquors within theprescribed territory. We must presume they know what a sale meant, and referred to the same as commonly understood and as decided by the courts. As early as Holley v. State (decided in 1883), 14 Texas Crim. App., 505, it was held that the Legislature was circumscribed to a sale within the prohibited territory, and could not prohibit a gift. Long before that, the Supreme Court of this State had decided what constituted a sale; and in Woods Co. v. Half, Weis Co., 44 Tex. 633, the court held "that as to the sale of chattels the intent of the parties when clearly ascertained is of controlling force in determining when the sale of chattels has been executed; and every sale transfers the property. That is not a sale which does not transfer the property in the thing sold." And in speaking as to the facts of that case they say: "That goods boxed up, marked in the name of the buyer and on a dray on the way to the wharf for delivery to the carrier are not subject to levy as the goods of the buyer." But they hold it would have been different if the goods had reached the common carrier. This case arose before the adoption of the Constitution of 1876. And in Rohrbough v. Leopold, 68 Tex. 254 [68 Tex. 254], it was held, that without regard to the character of negotiations which preceded a sale of chattels, no sale is finally consummated until both parties agree to their delivery. "The place of a sale of goods is the place of delivery where the sale is completed by delivery." 22 Am. and Eng. Enc. of Law, p. 1339, and authorities cited in note 4. And again it is said: "Ordinarily, and in the absence of an agreement to the contrary, the seller is under no obligation to send or carry to the buyer the goods sold. His duty is fulfilled by so placing them at the disposal of the buyer that they can be removed by him." 24 Am. and Eng. Enc. of Law, p. 1068. "Where the place of delivery is fixed by *Page 495 the contract that, of course, controls, and the seller need not make a tender at any other place; and if tendered at another place, the buyer need not accept; but where nothing is said upon the subject, it is taken for granted that the goods are to be delivered or placed at the buyer's disposal at the place where they are when sold, unless some other place is regarded by the nature of the article, or by the usage of trade, or by the previous course of dealing between the parties, or is to be inferred from the circumstances of the case." Id., p. 1069. "Where the duty of the seller is to send goods to the buyer, the general rule is that delivery to a common carrier is equivalent to a delivery to the buyer himself. Particularly is this so if the carrier to whom the delivery is made has been designated by the buyer. The carrier is deemed the agent of the buyer and not the agent of the seller. Such delivery effects the transfer of title, and is a sufficient performance of the contract to enable the seller to maintain an action for the goods sold and delivered, even though the seller pays the freight. Though in controverted cases, the payment of freight may have an important bearing in determining whose agent the carrier is." Id., 1071. And see Tennet, Walker Co. v. Skinner, 1 Texas Civ. App. Cases (W. W.), sec. 78; Specialty Furn. Co. v. Kingsbury, 60 S.W. Rep., 1030.
As stated above, no doubt when the Constitution was adopted on the subject of local option, by the people, it was adopted with reference to the well known definitions of sale, and of what constituted a completed sale. In Bruce v. State, 36 Tex. Crim. 53, the question of C.O.D. sales was discussed; and it was there said that the authorities were both ways as to the locus of the sale; but we followed that class of decisions which held that the sale was completed when the property was delivered to the common carrier by the seller. Freshman v. State, 38 S.W. Rep., 1007; Weatherford v. State, 1 Texas. Ct. Rep., 655; Treadaway v. State, 42 Tex.Crim. Rep.. In the latter case, summarizing, the court stated: "This court has heretofore held that when whisky is shipped to a party C.O.D., the moment it is placed in the express office it becomes the property of the consignee, and this is clearly true the moment the consignee receipts the express company for the same, and pays the C.O.D. charges thereon." So it would appear that the question of sale and the locus thereof, both generally and as relating to C.O.D. packages, has been well settled by the decisions of this court. However, the Legislature has seen fit to pass an act regarding C.O.D. packages at variance with the rule heretofore adopted and followed by this court. Whenever a case is brought before this court with no other facts or circumstances to characterize the sale, as to the place where the seller parts with title to the property, than a simple C.O.D. package, we will meet and decide the question. However, as stated before, we do not believe the Legislature, or any other department of the government, has authority to make contracts for parties, and that parties are authorized to make their own contracts, when not in violation of some *Page 496 law of the land. We are disposed to doubt the authority of any department of the government to make that a completed contract at a place where it is not completed — the seller not there parting with title to the property — or to visit a penalty upon any citizen for doing some act preliminary to a sale, which does not evidence a completed sale in territory where, under the Constitution, the Legislature is only authorized to punish a sale within the prohibited territory. As stated before, this sale does not come under the act of the Twenty-seventh Legislature. The charge of the court which attempted to involve this act in defining a sale was erroneous, and for this and other errors pointed out, the motion for rehearing is overruled.
Overruled.