State v. Ascher

Carpenter, J. This is a prosecution for selling spirituous liquor contrary to law. The facts are concisely stated in the charge to the jury:—“It is agreed, indeed testified to by the accused, that he went to Vernon and solicited, as agent for Swartz Bros, of New York city, (being paid a salary by them for his services), Einsidel to become a purchaser from Swartz Bros, of certain spirituous liquors; that upon such solicitation, Einsidel gave an order to the accused for certain spirituous liquors, to be furnished by Swartz Bros.; that that order was transmitted to their house by the accused, and, in pursuance of the order, the goods were forwarded and went into the possession of Einsidel. These are the agreed facts in the case. The only question is a question of law as to their legal effect. If, acting as agent for Swartz Bros., living and having their place of business in New York city, the accused came to Rockville and solicited the person named in this complaint to purchase intoxicating liquors from them, and as such agent took his order upon Swartz Bros., given by reason of such solicitation, and the liquors were afterwards delivered by Swartz Bros., in pursuance of the order so obtained, the defendant is liable, and that although such delivery took place in New York.” The defendant was convicted and appealed to this court. His grievance is that he was convicted of an unlawful sale, while, as he contends, he effected no sale within the meaning of the statute in this state. He says that he only solicited and obtained an order in this state, and that the sale was completed by a delivery of the liquors by his employers to the purchaser in the state of New York. The statute of 1882, part 6, section 1, (Acts of 1882, [304] p. 185,) provides that “ any person who, without a license therefor, shall, by sample, by soliciting or procuring orders, or otherwise, sell any spirituous and intoxicating liquors, shall be fined for the first offense not more than fifty dollars, &c.” The same statute, part 4, section 11, provides that “ 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; 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 be legally sold.” The question is, what did the legislature mean by selling by sample, or by soliciting or procuring orders ? A majority of the court think that it intended to prohibit just such a sale as was made in this case. If the statute is to be so construed as to limit its operation to sales completed by delivery in this state, of course a vast majority of sales by soliciting orders will not be embraced in the statute. We think that the legislature, taking notice of the fact that wholesale dealers in New York and elsewhere out of this state generally sell their wares through agents going from place to place soliciting and procuring orders, intended to prohibit such sales. Otherwise the facilities for making such sales are so great, extending to every town and hamlet in the state, that the efficiency of the license law would be materially impaired. Dealers in neighboring states, without license and without restriction, could sell and cause to be delivered in any and all parts of the state liquors to any extent. Hence the legislature was careful to guard against such a result by prohibiting, as it does in the eleventh section, all sales without a license and all sales in a no-license town. It allows a licensee under the act to solicit and procure orders in any town in which such liquors may legally be sold. All others are absolutely prohibited from selling in any way. Licensed dealers therefore are restricted in such sales to license towns, while the construction con [305] tended for by tbe defendant would open every town in tbe state to the free and unrestricted sale by soliciting orders to all dealers out of the state. Such .results could not have been intended by the legislature, and a construction which will lead to such consequences ought to be avoided. It will be useful to compare the present statute with those previously existing. They were as follows :—“ Any person, without a license therefor, who shall sell * * * any intoxicating liquor ® * * shall be fined not less than fifty dollars, &c.” Revision of 1875, p. 520, sec. 41. “If any person, in violation of this act, by himself, his servant or agent, shall, for himself or for anybody else, directly or indirectly, or on any pretence, or by any device, sell, or, in consideration of the purchase of any other property, give to any other person any spirituous or intoxicating liquor,” &c. Revision of 1866, p. 695, sec. 17. Thus it appears that under those statutes a completed sale was essential. It is at least doubtful whether a person coming into this state and soliciting an order, which order was filled by a delivery of the property out of the state, committed any offense under those acts. There was no technical sale until the property was selected and delivered, either to the purchaser or to some one for him. The delivery being out of the state, the argument that the sale was not completed in this state, and therefore that there was no offense, would seem conclusive. In this state of the law, and in view of the fact that sales were largely and even generally made by procuring orders, the legislature in 1882, for the first time, put into the enacting clause of the statute the words— “ by sample, by soliciting or procuring orders.” For what purpose ? There can be but one rational answer: to prohibit all sales by soliciting orders except such as the act expressly allows. Licensed dealers are in terms allowed to sell by orders in license towns. They and all others are prohibited from so selling in no-license towns. We ought not to, and we cannot, so construe the statute as to discriminate against our own citizens. To avoid that it is indispensable that foreign and domestic [306] dealers should be placed upon the same footing. Do foreign dealers desire to do business in this state ? Then let them establish their business here and procure a license. The claim that the legislature intended only such sales as should be consummated by a delivery in this state cannot be allowed. It is a matter of common knowledge that sales effected by drummers are usually, if not always, consummated by a delivery at the vendor’s place of business to a common carrier; and while such delivery for all civil purposes completes the sale made by the drummer, vests the title in the purchaser, and gives the seller a right to the purchase money, yet for all police purposes it is competent for the legislature to say that the acts done by the drummer shall of themselves constitute a sale and therefore an offense. And we think the legislature intended so to say, and to make all such acts an offense, whether the delivery was in or out of the state. By doing so the word “ sell ” is used in the same sense in which it is generally used by business men in relation to this subject matter. In common language a drummer sells goods; he sells by sample; he sells by soliciting and procuring orders ; the dealers sell-by drummers as their agents. Now if the statute does not reach all such cases then it falls short of reaching the evil aimed at, and'the intended remedy is a failure. It will be observed that the question before us is not— what ought to be the law ? but—what is it ? It may be that the statute will sometimes operate harshly; but such considerations are for the legislature rather than the courts. There is no error in the judgment complained of. In this opinion Pakdee and Loomis, Js., concurred.