(dissenting.)—On the trial of this ease the facts were not in dispute. They were substantially as follows :—
The defendant procured an order from one Einsidel of the town of Vernon in this state to be sent to Swartz Brothers *307of the city of New York for the sale of spirituous' liquors by them in that city to Einsidel, if they should be disposed to fill the order. The order was sent, and Swartz Brothers sold the liquors to Einsidel according to the order. The liquors were sent to Einsidel at Vernon at his expense by Swartz Brothers, and Einsidel paid for them and for their transportation. The defendant had no authority from Swartz Brothers to sell spirituous liquors for them, and he neither made nor attempted to make, with Einsidel, any contract of sale regarding the liquors. He was in the employment of Swartz Brothers to procure and forward orders for the sale of spirituous liquors by them in the city of New York, and all that he did in the matter complained of was in strict accordance with his employment. Neither the defendant nor Swartz Brothers had a license to sell spirituous liquors in any town in this state.
Do these facts constitute a breach of the statute of 1882, which provides that “ any person who, without a license therefor, shall, by sample, by soliciting or procuring orders, or otherwise, sell or exchange, or shall offer or expose for sale or exchange, or shall own or keep with intent to sell or exchange, any spirituous or intoxicating liquors,” shall be fined, &c. The question then is, did the defendant sell to Einsidel the spirituous liquors in question, when he procured from him the order sent to Swartz Brothers, or when Swartz Brothers afterwards in fact sold the liquors in New York to Einsidel, and forwarded the same to him?
It is conceded by the majority of the court that the act of the defendant did not amount to a sale when the order was procured and sent; but the claim is that the sale was consummated when the sale was made in New York, and the liquors had arrived at Einsidel’s place of business in Vernon.
But what kind of a sale was it ? All that the defendant did was to procure the order and send it. He had no authority to do anything more. He could make no contract of sale, much less make a sale, of the liquors of Swartz Brothers. "What kind of a sale was it? The defendant *308must have sold the liquors in question or there would be no violation of the statute ; this is conceded.
It seems to me that the statute itself should put an end to all controversy in regard to the meaning in it of the word “ sell.” Its language substantially is—“ Ho person shall sell, &c., without a license therefor,” that is, without a license for the sale. The statute has in view sales only which persons may be licensed to make. It seems to me this is clear. How, licenses are provided for sales in fact, and for such sales only, and when the statute declares, “ without a license for the sale that is made,” it means a sale in fact, made by the party, which he might have been licensed to make.
I think therefore, that the act of the defendant in simply procuring the order and sending it to his employers in Hew York, does not constitute a sale within the meaning of the act, although followed by a sale by Swartz Brothers in Hew York, and by a forwarding of the liquors to Yernon at the purchaser’s expense.
If the defendant had been authorized to make a contract of sale of the liquors in question, and he had made it, or if he had made it without being authorized, and in either case the liquors had been sent and delivered to Einsidel in fulfillment of the contract, then I think it might be said that the defendant had sold the liquors within the meaning of the statute. But I cannot think that if one should say to Ms neighbor, who was desirous to obtain the best of liquors for Ms own consumption—“ Go to A. B. in Hew York and purchase your next supply,” and even if he should urge Mm to do so, and the neighbor should go to A. B. in consequence and purchase and bring home his supply of liquors, that the neighbor who made the solicitation would render himself amenable to this statute, on the ground that he had sold the liquors to his neighbor without a license therefor. He would be so liable if the construction is correct wMch the majority of the court have given to the statute.
But it is said that the eleventh section of the act strongly supports the view taken by the majority of the act in ques*309tion. I am unable to see it. That act is as follows :—“No person shall sell any spirituous and intoxicating liquors, by sample, by soliciting or procuring orders, or otherwise, within this state, without taking out a license therefor in the manner provided in this chapter.” If the statute had stopped here, would any one claim that there was anything in its operation against any licensed person ? Its prohibition is wholly against unlicensed persons. But the statute goes on to provide as follows :—“ But nothing in this act contained shall prohibit any dealer in spirituous and intoxicating liquors duly licensed under the provisions of this act, from soliciting and procuring orders in any town in this state in which such liquors may legally be sold.”
Manifestly the object of this last clause was, to make it clear beyond the possibility of a claim to the contrary, that licensed persons were not included in the first clause of the statute. Again, the first clause is a sweeping prohibition of sales, in the manner described, by unlicensed persons everywhere in the state, leaving it to be inferred, to some extent, that licensed persons may make such sales anywhere, as well in no-license towns as in license towns ; and to prevent such inference the last clause may have been inserted, confining their sales by soliciting orders to license towns.
Again, it is said that the construction which the defendant claims should be given to the statute would destroy to a great extent its efficiency, and would involve an unjust discrimination in favor of non-residents of the state. But such considerations as these should be addressed to the legislature, to induce it to enact a further statute on the subject, if the present one does not go far enough; they throw little light upon the present inquiry, what the statute really means. No statute can prevent the buyers of spirituous liquors from going to New York to make their purchases, if they are so disposed, as was the fact in the present case. Suppose Einsidel had taken the order after he had given it to the defendant, and had gone himself to New York, and had there made the purchase in person, and had brought home with him the liquors in question, would the *310defendant then have been liable ? Suppose Swartz Brothers had been sellers of dry goods, and an order had been given by Einsidel to the defendant for a quantity of cotton cloth, with all the incidents of the present case. The defendant in procuring and sending the order would have been acting for Einsidel, as his agent, and the case would have been the same as though Einsidel had made and sent his own order, and had directly made the purchase. Surely it could not be said that the defendant was the seller of the cloth.
It seems to me that the case of Crarbraoht v. The Commonwealth., 96 Penn. St., 449, is directly in point, and is a strong authority for the defendant.
I think there is error.
In this opinion Granger, J., concurred.