Commonwealth v. Fleming
COMMONWEALTH v. JOSEPH FLEMING
Syllabus
Summary
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
Opinion of the Court
Text extracted by OCR from a scanned original; check the original for exact wording.
Opinion, Mb. Justice Gbeen:
In the case of Garbracht v. Commonwealth, 96 Pa. 449 , which *156 was an indictment for selling liquor without license, we held that “ the place of sale is the point at which goods ordered or purchased are set apart and delivered to the purchaser, or to a common carrier, who, for the purposes of delivery, represents him.” In that case the order for the liquor was solicited and obtained by the defendant in the county of Mercer, but was sent to his principal, who was a liquor dealer in the county of Erie. The order was executed by the principal, who, in the county of Erie, at his place of business, separated or set apart from his general stock the liquor ordered, and delivered it to a common carrier to be forwarded to its destination in Mercer county. We decided that this was no violation of the law prohibiting sales without license, although neither the defendant, who was a traveling agent, nor his principal, held any license for the sale of liquor in Mercer county. This decision was not changed in the least upon a subsequent trial of the same defendant upon a different state of facts, as reported in 1 Penny. 471 . | In the case now under consideration, the liquor was sold upon orders sent by mail by the purchasers, living in Mercer county, to the defendant, who is a wholesale liquor dealer in Allegheny county. The goods were set apart at the defendant’s place of business in Allegheny county, and were there delivered to a common carrier, consigned to the purchaser at his address in Mercer county, and by the carrier transported to Mercer county, and there delivered to the purchaser, who paid the expense of transportation. Upon these facts alone, the decision of this court in the case of Garbracht, supra, is directly and distinctly applicable, and requires us to reverse the judgment of the court below, unless there are other, facts in the case which distinguish it from that of Garbracht.
It is claimed, and it was so held by the court below, that, because the goods were marked C. O. D., the sale was not complete until the delivery was made, and, as that took place in Mercer county, where the defendant’s license was inoperative, he was without license as to such sales, and became subject to the penalty of the criminal law. The argument by which this conclusion was reached was simply that the payment of the price was a condition precedent to the delivery, and hence there was no delivery until payment, and no title passed until delivery. The legal and criminal' inference was, that the sale was made in *157 Mercer, and not in Allegheny. This reasoning ignores certain facts which require consideration. The orders were sent by the purchasers, in Mercer, by mail to the seller, in Allegheny, and in the orders the purchasers requested the defendant to send the goods C. O. D. The well-known meaning of such an order is that the price of the goods is to be collected by the carrier at the time of delivery. The purchaser, for his own convenience, requests the seller to send him the goods, with authority in the carrier to receive the money for them. This method of payment is the choice of the purchaser, under such an order; and it is beyond question that, so far as the purchaser is concerned, the carrier is his agent for the receipt and transmission of the money. If the seller accedes to such a request by the purchaser, he certainly authorizes the purchaser to pay the money to the carrier, and the purchaser is relieved of all liability to the seller for the price.of the goods if he pays the price to the carrier. The liability for the price is transferred from the seller to the carrier; and, whether the carrier receives the price or not, at the time of delivery, he is liable to the seller for the price if he does deliver. Substantially, therefore, if the delivery is made by the carrier, and he chooses to give credit to the purchaser for the payment of the price, the transaction is complete, so far as the seller is concerned, and the purchaser may hold the goods.
Of course, if the seller were himself delivering the goods in parcels upon condition that on delivery of the last parcel the price of the whole should be paid, it would be a fraud on the seller if the purchaser, after getting all the parcels, should refuse to perform the condition upon which he obtained them, and in such circumstances the seller would be entitled to recover the goods. This was the case of Henderson v. Lauck, 21 Pa. 859 . The court below, in that case, expressly charged that if the seller relied on the promise of the purchaser to pay, and delivered the goods absolutely, the right to the property was changed, although the conditions were never performed; but if he relied, not on the promise, but on actual payment at the delivery of the last load, he might reclaim the goods if the money was not paid. The case at bar is entirely different. So far as the seller is concerned, he is satisfied to take the responsibility of the carrier for the price, in place of that of the *158 seller. He authorizes the purchaser absolutely to pay the price to the carrier; and, if he does so, undoubtedly the purchaser is relieved of all responsibility for the price, whether the carrier ever pays it to the seller or not. But the carrier is also authorized to- deliver the goods. If he does so, and receives the price, he is of course liable for it to the seller. But he is equally liable for the price if he chooses to deliver the goods without receiving the price. It cannot be questioned that the purchaser would he liable also; but, as he had received the goods from one who was authorized to deliver them, his right to hold them even as against the seller is undoubted. In other words, the direction embodied in the letters C. O. D., placed upon a package committed to a carrier, is an order to the carriel' to collect the money for the package at the time of its delivery. It is a part of the undertaking of the carrier with the consignor, a violation of which imposes upon the carrier the obligation to pay the price of the article delivered, to the consignor. We have been referred to no authority, and have been unable to discover any, for the proposition that in such a case, after actual, absolute delivery to the purchaser by the carrier, without payment of the price, the seller could reclaim the goods from the purchaser as upon violation of a condition precedent.
If, now, we pause to consider the actual' contract relation between the seller and purchaser, where the purchaser orders the goods to be sent to him C. O. D., the matter becomes still more clear. Upon such an order, if it is accepted by the seller, it becomes the duty of the seller to deliver the goods to the carrier, with instruction to the carrier to collect the price at the time of delivery to the purchaser. In such a case it is the duty of the purchaser to receive the goods from the carrier, and, at the time of receiving them, to pay the price to the carrier. This is the whole of the contract, so far as the seller and the purchaser are concerned. It is at once apparent that when the seller has delivered the goods to the carrier, with the instruction to collect the price on delivery to the purchaser, he has performed his whole duty under the contract; he has nothing more to do. If the purchaser fail to perform his part ■of the contract, the seller’s right of action is complete; and he may recover the price of the goods from the purchaser, whether *159 tbe purchaser takes, or refuses to take, the goods from the carrier. Hence it follows that the passage of the title to the purchaser is not essential to the legal completeness of the contract of sale. It is, in fact, no more than the ordinary case of a contract of sale, wherein the seller tenders delivery at the time and place of delivery agreed upon, but the purchaser refuses performance. In such case it is perfectly familiar law that the purchaser i's legally liable to pay the price of the goods, although, in point of fact, he has never had them. The order to pay on delivery is merely a superadded term of the contract; but it is a term to be performed by the purchaser, and has no other effect upon the contract than anjr other term affecting the factum of delivery. It must be performed, but performed by the purchaser, just as the obligation to receive the goods at a particular time or a particular place. Its nonperformance is a breach by the purchaser, and not bjr the seller, and therefore cannot affect the right of the seller to regard the contract of sale as complete, and completely performed on his part, without any regard to the question whether the title to the goods has passed to the purchaser as upon an actual reception of the goods by him. If this be so, the case of the commonwealth falls to the ground, even upon the most critical consideration of the contract between the parties, regarded as a contract for civil purposes only.
The duties which lie intermediate between those of the seller and those of the purchaser are those only which pertain to, and are to be performed by, the carrier. These, as we have before seen, are the ordinary duties of carriage and delivery, with the additional duty of receiving the price from the purchaser, and transmitting it to the seller. The only decided case to which we have been referred which presents the effect of an order C. O. E. to a carrier, is Higgins v. Murray, 73 N. Y. 252 . There the defendant employed the plaintiff'to manufacture for him a set of circus tents. When they were finished, the plaintiff shipped them to the defendant C. O. D., and they were destroyed by fire on the route. It was held that the defendant, who was the purchaser, should bear the loss; that the plaintiff had a lien on the tents for the value of his labor and materials, and his retaining his lien by shipping them C. O. D. was not inconsistent with, and did not affect his right to enforce the *160 defendant’s liability. In the course of the opinion Chief Justice Church said: “ Suppose, in this case, that the defendant had refused to accept a delivery of the tent, his liability would have been the same, although the title was not in him. The plaintiff had a lien upon the article for the value of his labor and materials, which was good as long as he retained possession..... Retaining the lien was not inconsistent with his right to enforce the liability for which this action was brought. That liability was complete when the request to ship was made by the defendant, and was not affected by complying with the request, nor by retaining the lien the same as when the request was made. As the article was shipped at the request of and for the benefit of the defendant, (assuming that it was done in accordance with the directions,) it follows that it was at his risk, and could not impair the right of the plaintiff to recover for the amount due him upon the performance of his contract. .... As before stated, the point as to who had the title is not decisive. It may be admitted that the plaintiff retained the title as security for the debt, and yet the defendant was liable for the debt in a proper personal action.” It seems to us this reasoning is perfectly sound. Practically, it was ruled that the effect of the order C. O. D. was simply the retention of the seller’s lien, and that such retention of lien is not inconsistent with a right of recovery for the price of the article, though, in point of fact, it is not delivered to the purchaser. In other words, the literal state of the title is not decisive of the question of liability of the purchaser, and he may be compelled to pay for the article, though he never received it into his actual possession. The Chief Justice propounds the very question suggested heretofore, of a refusal by the purchaser to accept the article, and holds that his liability would be the same, though the title was not in him.
In Hutchinson on Carriers, at § 389, the writer thus states the position and duty of the carrier: “ The carrier who accepts the goods with such instructions [C. O. D.] 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 his goods.” And again, in § 390: “ When the goods are so *161 received, the carrier is held to a strict compliance with such instructions; and, if the goods are delivered without an exaction from the consignee of the amount which the carrier is instructed to collect, he becomes liable to the consignor for it.” This is certainly a correct statement of the position and liability of the carrier. He becomes subject to an added duty, that of collection; and, if he fails to perform it, he is liable to the seller for the price of the goods. We have searched in vain for any text-writer’s statement, or any decision, to the effect that in such case no title passes to the purchaser. We feel well assured none such can be found. But, if this be so, the whole theory that the title does not pass if the money is not paid falls, and the true legal status of the parties results, that the seller has a remedy for the price of his goods against the carrier. In other words, an order from a seller to a carrier to collect on delivery, accepted by the carrier, creates a contract between the seller and the carrier, for a breach of which by the carrier the seller may recover the price from him. So far as the seller and purchaser are concerned, the latter is liable, whether he takes the goods from the carrier or not, and the order itself is a mere provision for the retention of the seller’s lien. While, if the goods are not delivered to the purchaser by the carrier, the title does not pass, that circumstance does not affect the character of the transaction as a sale; and the right of the seller to recover the price from the purchaser, if he refuse to take them, is as complete as if he had taken them, and not paid for them.
Thus far we have regarded the transaction between the parties in its aspect as a civil contract only; but, when viewed in its aspect as the source of a criminal prosecution, the transaction becomes much more clear of doubt. It is manifest, that when the purchaser ordered the goods to be sent to him C. O. D., he constituted the carrier his agent, both to receive the goods from the seller, and to transmit the price to the seller. When, therefore, the goods were delivered to the carrier at Pittsburgh for the purpose of transportation, the duty of the seller was performed, as we have already seen, so far as he and the purchaser were concerned, and as between them the transaction was complete. The duty of transportation devolved upon the carrier, and for this he was, in one' sense, the agent of the *162 seller, as well as of the purchaser; but, as it was to be at the ' expense of the purchaser, the delivery to the carrier was a delivery to the purchaser; and this was ruled in Garbracht’s case. The injunction to the carrier to collect the money on delivery imposed an additional duty on the carrier, which the carrier was, of course, bound to discharge. This arrangement was a matter of convenience, both to the purchaser and the seller, relative to the payment and transmission of the price; but that is all. To convert this entirely innocent and purely civil convention respecting the mode of collecting the price of the goods, into a crime, is in our judgment, a grave perversion of the criminal law, to which we cannot assent. As a matter of course, there is an utter absence of any criminal intent in the case. The defendant had a license. The sale was made at his place of business, and both the sale and delivery were completed within the territory covered by the license. If, now, a criminal character is to be given to the transaction, it must be done by means of a technical inference that the title did not pass until the money was paid; and thus that the place of sale, which in point of fact was in Allegheny county, was changed to Mercer county, where no sale was made. Even granting that, in order to conserve the vendor’s lien, such a technical inference would be justified for the purposes of a civil contract, it by no means follows that the plain facts of the case must be clothed with a criminal consequence on that account. So far as the criminal law is concerned, it is only an actual sale without license that is prohibited. But there was no such sale, because all the essential facts which constituted the sale transpired in Allegheny county where the defendant’s license was operative. The carrier, being the agent of the purchaser to receive the goods, does receive them from the seller in Allegheny county, and the delivery to him for the purpose of transportation was a delivery to the purchaser. This is the legal, and certainly the common, understanding of a-sale. The statute, being criminal, must be strictly construed; and only those acts which are plainly within its meaning, according to the common understanding of men, can be regarded as prohibited criminal acts. We cannot consider, therefore, that a mere undertaking on the part of the carrier to collect the price of the goods at the time of' his delivery to the purchaser, though *163 the payment of the price be a condition of the delivery, can suffice to convert the seller’s delivery to the carrier for transportation and collection into a crime. We therefore hold that the sales made by the defendant upon orders C. O. D. received from the purchasers, were not in violation of the criminal statute against sales without license, and the conviction and sentenceiin the court below must be set aside.
The judgment of the Court of Quarter Sessions is reversed, and the defendant is discharged from his recognizance upon this indictment.
Dissent
Text extracted by OCR from a scanned original; check the original for exact wording.
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. *164 When 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 *165 secure 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; *166 and 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. *167 Flour 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 *168 ciples 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 *169 by 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 *170 tlie 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.
How later courts describe this case
No later court has written an explanatory parenthetical about this case yet.
Cited by 17 cases
View all citing references →- U.S. Courts of Appeals2
- Federal District Courts2
- State Highest Courts7
- State Appellate Courts5
- State Trial Courts1
Relies on it most ⓘ
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.