People v. Weiner

Smith, P. J.:

Defendant has been convicted of violating subdivision K of section 30 of the Liquor Tax Law, in soliciting an order to deliver liquor in a town in which a liquor tax certificate is prohibited, commonly called a no-license town. Defendant is a wholesale liquor dealer in the city of Kingston, in Ulster county. Upon the 5th day of March, 1910, one J. D. Frisbee, of the town of Andes, in Delaware county, which was a no-license town within the provisions of the Liquor Tax Law, received a letter signed with defendant’s name, soliciting an order for the sale and delivery of whisky, which said order was received by the said defendant thereafter, and pursuant thereto a gallon of whisky was sold and delivered. The delivery of the whisky was within the county of Ulster, and is not included in the charge here made. Subdivision K of section 30 of the Liquor Tax Law, under which the defendant was prosecuted, reads as follows: “To solicit, accept or procure .in a . town in which á liquor tax certificate is prohibited under questions one, two and four of section thirteen of this chapter, as the result of a vote on ‘questions submitted,’ an order to deliver or send to another, or for another, liquor in any quantity, where the person for whom such liquor is procured resides in any such town.” (See Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 30, subd. K, since amd. by Laws of 1910, chap. 494.)

Without considering the question whether the writing of a letter is the solicitation of an order within the town to which a letter is sent, or whether the defendant is liable for the acts of his employee without his consent, or even against his prohibition, as I view it, the learned court below has misread this statute. The prohibition in the statute is from soliciting or accepting an order “to deliver or send to another, or for another, liquor in any quantity.” The word “another” cannot be used in contradistinction from the seller. It is not conceivable that a liquor seller would solicit an order for liquor for himself, or to be delivered to himself. The use of the word “another,” therefore, in the statute is evidently in contradistinction to the purchaser or person from whom the order is solicited. That this is the proper construction of the statute is emphasized by the last phrase in the subdivision, “where the person for whom such liquor is procured resides in any such town.” This clearly indicates that it is not the purchaser who purchases for himself, the solicitation of whose order is made criminal, but the purchaser who purchases for another. If the ■soliciting of all orders for the purchasing of liquor in a no-license town were intended to be included in the prohibition, such prohibition could be expressed in language much simpler, and the court should not be called upon to find such a prohibition in language which has for its natural interpretation a soliciting of an order from one to purchase for another than the purchaser.

The interpretation is not an unreasonable one in view of the ob jects presumably sought to be accomplished. We may assume that in a no-license town all devices which ingenuity can suggest may be adopted to evade the statute. In social clubs it is a practice sometimes adopted where no license is taken out, for liquor to be purchased by the steward for the different members of the club, the steward acting as the agent of the different members. It may fairly be conjectured that in a no-license town this same method might be adopted, the saloon keeper thus acting as the agent of the persons for whom he purchases liquor, and the delivery to these persons of their liquor, either in bulk or from time to time in smaller quantities, would not be within the direct prohibition of the statute. It would seem to be at such practice that this statute was aimed, prohibiting the soliciting or acceptance of an order from one who is in fact trafficking in liquors, but evading the penalties of the statute by purchasing as agent for his various customers. But whatever may have been the mischief aimed at, or may have been the purpose of the statute, the meaning of the words used must be forced in order to bring them within the act of soliciting an order from the person in a no-license town for liquor for personal use. Such solicitation, as I read the statute, is not included within its prohibition, and the judgment of conviction should, therefore, be reversed.

Betts, J., concurred with Houghton, J.; Kellogg, J., dissented in opinion in which Lyon, J., concurred.