Commonwealth v. Fleming

Opinion dissenting,

Mb.' Justice Williams :

At the license term of the Court of Quarter Sessions for the county of Mercer in 1888, all applications from the borough of Mercer were refused. Within a few days after such refusal, the defendant, who holds a license authorizing sales by the quart and larger measure in the city of Pittsburgh, went to Mercer, and gave public notice through the local papers, and by circulars distributed from house to house, that he would supply the' people of that region with liquors by the quart and upwards by express, C. O. D. A trade sprang up at once, which soon reached such dimensions as to attract public notice. The constable of Mercer returned the defendant as engaged in the sale of liquors in his borough without a license. He was indicted by the grand jury, tried, convicted, and sentenced. He comes now into this court asking to be relieved from the conviction and sentence, alleging that his sales made in Mercer, C. O. D., were lawfully made under his license in Allegheny county, and that the action of the authorities of Mercer county was an unlawful interference with a legitimate business enterprise. If this is true, whatever we may think of his business methods, we ought to relieve him from an improper conviction. If it is not true, the circumstances under which these sales were made, and the evident purpose to disregard public sentiment and the action of the court upon the subject of licenses, are reasons why the sentence should be rigidly enforced. Let us inquire, therefore, what the license granted by the courts of Allegheny county authorized him to do.

His application was for license to sell by the quart and larger measure at a place named by him in the city of Pittsburgh. *164When the application was granted, it authorized him to sell at the place named and by the measure indicated in his petition, subject to all the limitations and restrictions imposed by law upon the traffic in intoxicating liquors. It did not authorize him to sell at any other place, or in any other manner. He has no right to sell and deliver liquor by the quart to a minor or a lunatic, or to one visibly affected by drinlc. He need not ask whether the customer who presents himself at his store lives in Allegheny county; but he is bound to take notice of his condition, if the liquor for which he applies is to be delivered into his hands at the time of sale. Such sales are in no sense sales at wholesale or to the trade, but they are sales at retail for individual consumption. The defendant could lawfully sell to the trade or to individual customers, and make delivery at the time, or through a common carrier, subject to the restrictions to which we have referred, but his sales must be made at his store.

This will be rendered more apparent if we glance at the provisions of the license law. It is well settled that a license is a personal privilege, granted in part, at least, in vieiv of the 'fitness of the applicant to be intrusted with it. He is required to be a citizen. He must be a man of temperate habits, that his business may have sober and intelligent supervision. He must be a man of good moral character, affording thereby assurance that his sales shall be conducted with good faith towards the law and the public. The possession of these qualifications must be certified to by not less than twelve of his neighbors. He must give notice of his application, so that the fact may be known, and an opportunity offered for any one to object who may desire to do so. He must give a bond in the ' sum of |2,000, with two sufficient sureties, conditioned that he will faithfully observe all the requirements of the liquor laws. In addition to these personal qualifications, he must have a place of business. This must be rated and returned in the same, manner that merchants are rated and returned for mercantile taxes; and, when his license is granted, it must be framed under glass, and conspicuously displayed in his place of business, before he begins to make sales. The purpose of these 1 provisions is evident. It is to grant licenses only to suitable persons, to conduct business at suitable places, and to *165secure an honest compliance with the laws. If, notwithstanding all this precaution, the dealer sells to persons of a prohibited class, or on prohibited days, or at any other place than that named in his license, penalties are provided by way of punishment, and, his unfitness to be trusted being thus made apparent, his license may be revoked. It is very clear that the defendant’s license could not authorize him to sell and deliver by the quart or gallon to minors, or other members of the prohibited classes, or to any person at any other place than his store in the city of Pittsburgh.

Let us now inquire what he did in Mercer county. He went there, and offered to supply the people with drink, not by opening a saloon, and delivering it over the counter or bar, but by delivering at their houses, shops, or stores by an agent to whom payment could be made, and by whom the bottles or package would be delivered. In consequence, he received orders from individuals in Mercer, put up the bottle or bottles in a package, marked it “ glass ” or “ medicine,” and sent it with the bill by the carrier, marked “ C. O. D.” The express company carried the package, collected the money, if it was paid promptly by the consignee, and delivered the package. What is the legal effect of such a sale ? If the defendant had taken the bottles to Mercer in person, and delivered them on receipt of the price, no one could be found to doubt that his sale was made where he took his money and delivered his goods. If he had sent a clerk from his store to do the business for him in the same manner, the character of the transaction •would be equally free from doubt. Instead of sending his clerk, he employed the carrier to collect the bill and deliver the package for him; and the carrier became his agent for collection and delivery as truly as his clerk would have been. The duty of the carrier, as such, ended with the transportation of the package. Its undertaking to collect the price and make delivery of the article was outside the functions of a carrier, and made it the agent or factor of the consignor for that purpose. The transaction, taken together, was, both on principle and authority, a sale and delivery at Mercer, and not at Pittsburgh.

The duty of a common carrier is to carry for all who come : Angelí on Carriers, § 67; Hutchinson on Carriers, §§ 47, 48; *166and his duty does not extend beyond the carriage and its necessary incidents. If he accepts for carriage a package with directions not to deliver it to the consignee except on payment of the price, he will doubtless be liable for its value if he disregards the directions, because of the contract implied from his acceptance of the package so marked. If unwilling to undertake the additional duty, the carrier has the right to decline the package. If willing to undertake it, he does so, not as a carrier, but under the direction, and as the agent, of the consignor. He transports the package as a carrier, and collects the price, and on receipt thereof makes delivery, as the vendor’s agent. The title remains in the vendor until the delivery is made, and if payment is not made to the agent, the package is returned to the vendor. The rule in regard to goods sent C. O. D. is very clearly stated in Hutchinson on Carriers, § 389, as follows: “ Goods are frequently sent, especially by the express carrier, with instructions not to deliver them until they are paid for. In such cases it is understood that the payment of the price and the delivery of the goods are to be concurrent acts. The carrier who accepts the goods with such instructions, undertakes that they shall not be delivered unless the condition of payment be complied with, and becomes the agent of the shipper of the goods to receive such payment. He therefore undertakes, in addition to his duties as carrier, to collect for the consignor the price of the goods.”

In our own state the precise question does not seem to have arisen, but there are several cases in which the principle has been clearly recognized. In Harrington v. McShane, 2 W. 443, the owners of a steamboat received flour from the plaintiff to carry to Louisville, and to sell, and return the proceeds. The flour was transported to Louisville, sold, and the proceeds, together with all the papers and effects belonging to the boat, were burned during the return voyage in a fire that consumed the boat. An action was brought to recover the proceeds of the flour. This court held that as to the sale of the flour the defendants were the agents of the consignors; but that as to the transportation, both of the flour and the money, they were carriers, and they were accordingly liable for the loss of the money. In Taylor v. Wells, 3 W. 65, the question of the carrier’s liability was raised on a somewhat different state of facts. *167Flour was shipped by steamboat to a point of destination in the usual manner. The captain undertook to make sale of it, and bring back the price. The flour was carried, sold by the captain, and the money received by him. He never accounted for it. Suit was brought against the owners of the boat, but it was held that they had performed their contract as carriers, and that the sale of the flour and receipt of the money by the captain was done as the agent of the shipper. The remedy of the plaintiff was therefore against his agent, and not against the carrier. The same principle was involved in Penna. Railroad Co. v. Stern, 119 Pa. 24. The carrier undertook to obtain an acceptance of a draft for the price before the delivery of the goods, but delivered them without doing so. The carrier was held liable for the goods to the consignor, this court saying, through the present Chief Justice: “ The title to the property remained in the consignors until delivery in accordance with the conditions.” In State v. O’Neil (Vt.), 2 Atl. Rep. 586, it is held that “ an express company carrying goods on order of the seller to deliver to purchasers C. O. D. is the agent of the seller, and title does not pass until after the performance of conditions precedent, viz., delivery and payment.” The only case appearing to hold a contrary doctrine which has been brought to Our attention is Higgins v. Murray, 73 N. Y. 253. In that case tents had been manufactured for, and upon the direction of, a customer; and when completed, readjr for delivery, he was notified of the fact. At his direction, they were sent to him C. O. D., and were destroyed on the journey. He was held liable to the manufacturer, notwithstanding their loss on the journey, because the price should have been paid when the work was finished, and he notified of the fact. The ground of liability is thus stated by Chubch:, C. J. .■ “ If the article had burned during the progress of construction, it is clear that no action would lie, for the reason that the contract was an entirety, and, until performed, no liability would exist. And this rule, I apprehend, would apply when the contract is to make and deliver at a particular place..... But when the contract is fully performed, both as it respects the character' of the article and the delivery at the place agreed upon or implied, and the defendant is notified, or if a specific time is fixed, and the contract is performed within that time, upon general prin*168ciples I am unable to perceive why the party making such a contract is not liable.” This case is not authority, therefore, for the doctrine advanced by the defendant in error, but turned upon another question, viz., the right of a manufacturer to payment when he has completed the article contracted for by his customer. The rule on that subject is well stated in Ballentine v. Robinson, 46 Pa. 177: “ When the manufacturer of an article ordered has completed it, and, upon notice of its completion, the buyer refuses or neglects to pay for it and take it, the maker may sue for its value, and the measure of damages is the contract price.” The manufacturer does not lose his right to sue upon his contract because, at the request of his customer, he sends the goods by a carrier with instructions to collect the price; but, if his contract had been to make and deliver at a place named, the title would not pass until delivery at the place named: 1 Benj. Sales, 334. The same rule was held, in relation to sales, in The Venus, 8 Cranch 253, in which it was stated in these words: “ If the thing agreed to be sold is to be sent by the vendor to the vendee, it is necessary to the perfection of the contract that it should be delivered to the purchaser or his agent.” Our precise question arose in Massachusetts, in Commonwealth v. Greenfield, 121 Mass. 40. A dealer in liquors was licensed to sell in Pittsfield. Pie received an order for twenty dozen bottles of lager from Lee. He carried the bottles to his customer at Lee, and delivered them to him there. When indicted for the sale, he set up his license to sell at Pittsfield, and alleged that setting apart the bottles at his store in Pittsfield completed the sale, and passed the title to his customer; but the court held otherwise, saying: “ The evidence,.....to say the least, warranted the inference that the defendant......did not intend to part with the title until he actually delivered the goods at Lee, according to the terms of the order. If such was the fact, the goods, while in the wagon of the seller, remained his property and at his risk, and the sale was completed at Lee, and not at Pittsfield.

Upon this brief review of authorities, we conclude that the sales made by the defendant were made at Mercer when he delivered the liquor sold, and not at his store in Pittsburgh. It remains to be considered whether there is any reason why the defendant should be relieved from the punishment provided *169by law for selling liquors without a license. Let it be conceded that he supposed he had a right to make sales in the manner he did, yet ignorance of the law excuses no man. He was bound to know what he could, and what he could not do under his license. It is said the liquor laws are penal, and that a man is not made a criminal without a criminal intent. This, as applicable to an act malum in se, is true; as applicable to things that are mala prohibita, merely, it is not true. The intent is wholly immaterial, and is never inquired after. It is the act, no matter with what intent done, that is forbidden. The internal revenue laws of the United States are highly penal, but the courts inquire only after the act, not after the motive or intent. Did the defendant sell without a license? Did he omit to put the required stamp on his goods ? Did he fail to cancel the stamps, as the law requires ? The answer to these questions settles his guilt or innocence. The same thing is true in this case. The law under which the defendant held his license forbade him to sell outside his place of business. The evidence shows that he made sales, not only outside of his store, but outside the county of Allegheny. He did what the law clearly said he should not do, and he thereby subjected himself to punishment.

But, if an evil intent was necessary to justify a conviction, the evidence was abundant to submit to the jury on that question. It showed the defendant leaving his place of business, and the county in which it was located, and seeking an opportunity to make sales and deliver his goods in the county of Mercer. It showed that his visit followed at once upon the refusal by the court of Mercer county to grant licenses. It showed that, through the newspapers and by circulars left at every door in the borough of Mercer, he invited orders, and promised to fill them, delivering the drink to the consumer at his house or shop or store on payment of the price and the costs of transportation. It showed that to avoid notice, and divert attention from the character and extent of this traffic, he caused the packages, in which the bottle or bottles sent to his customers were wrapped, to be marked “ medicine ” or “ glass.” From these facts the jury would have been justified in finding that he knew that his sales were not authorized by his Allegheny countv license, and that he intended to violate *170tlie law for the sake of the profits which the refusal of licenses in Mercer opened to him. But this was not necessary. It was enough that he sold and delivered liquors in Mercer county without a license. If these sales were made to minors, or to other members of the prohibited classes, he might be prosecuted in the same manner as though he had delivered the liquors to the minor, lunatic, or drunkard with his own hand. He is bound to know to whom he retails by the quart. The law requires it. He was granted his license upon the assurance which his certificate of temperate habits and good moral character afforded, that he would give attention to his trade and conduct it in obedience to the law. lie has no right to break faith with the law, commit his business to his shipping clerk, and fill orders for liquors at retail, in small packages, for consumption by the buyers, without knowing their age, their habits, their sanity, or their condition when the sale is completed by the delivery of the bottle into their hands. Sales so made are ground for the revocation of the license held by the seller, as well as for conviction of the offence charged in the indictment in this case. For the reasons now given, I dissent from the judgment in this case.

Justices Clark and McCollum concur in this dissenting opinion.