Zinner v. Commonwealth

The wholesale liquor license Act of May 24,1887, repealed, immediately upon its passage, the Acts of April 10, 1849, March 31, 1856, and April 20, 1858, as far as they relate to the granting of licenses by the county treasurer, although the Act of 1887 provided that, for the present year, licenses may be granted under previous laws at any session fixed by the court of quarter sessions not later than June 30. The penalties for selling liquor without a license are properly imposed under the Act of May 13, 1887. A brewer may not sell in two places in the same county, under the Acts of 1849, 1856 and 1.858.

Error, No. 221, Jan T., 1888, to Q. S. McKean Co., to review a judgment on a verdict of guilty on an indictment for selling liquors without a license, at Oct. T., 1887, No. 85. Trunkey J., absent. The indictment charged that the defendant, on “ July 4, 1887, and at other times since May 13, 1887, and up to the finding of this indictment and inquisition at the county aforesaid, and within the jurisdiction of this court, did sell to one Andrew Lanner and to other persons divers quantities of whiskey, beer and other vinous, spirituous and malt liquors without first having obtained a license so to do, contrary to the form of the Act of Assembly in such cases made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.” The defendant pleaded not guilty. The facts appear by the charge of the court below, which was as follows, by Morrison, J.: “ The defendant, August Zinner, is indicted for selling spirituous, malt or brewed liquors within the county of McKean, without a license. There is no question about the evidence here. It is proved and uncontradicted, and, as we understand it, conceded on the part of the defendant, by his counsel, that he had a place or building at Port Allegany, where he bottled beer and sold it in cases containing one dozen and two dozen bottles, and received his pay for it, in the period between May 13 last and Oct. 6, when this indictment was found, to a large number of persons. If that was all there were in the case, there would be no difficulty at all; he would be guilty in manner and form as he stands indicted, as this evidence would certainly warrant a jury in finding him guilty. “ But he sets up here as a defense that he was the agent of one Erwin Schott, a brewer, who. had a brewery recently at Farmer’s Valley, in this county, in Keating township, and who has recently (as the testimony seems to show) removed from that place, and contemplates brewing in Port Allegany. I believe the evidence does not show that he has done any brewing there. The defense is that the defendant sold as the agent for Mr. Schott, and that Mr. Schott had a license as a brewer which permitted him to sell beer, in the manner in which this defendant sold, at Port Allegany. “ It will be very apparent that if Mr. Schott could not have gone to Port Allegany and sold this beer in the manner in which Zinner has, and if he had no right under the laws of Pennsylvania so to do, then of course this is no defense to Mr. Zinner. if he could have gone there as Zinner has done, and carried on this business lawfully, and you find from the evidence that Zinner was his agent and selling for his benefit for a stipulated remuneration, then this would be a defence. You will see, therefore, that it depends on the question of whether Erwin Schott had a right to carry on this business at Port Allegany. You cannot, we. apprehend, avoid finding from the evidence that it was his business. “ The defense is set up that Erwin Schott has a license as a brewer, and that that license entitled him to sell at Port Allegany. The only license that is produced, and the only evidence upon that score, is the testimony of the county treasurer, who says that Mr. Schott paid him on the 25th of last May, 1887, $25.00 for a license as a brewer, in Keating township. Now, without instructing you as to whether that was a sufficient amount, or whether he went through the proper preliminaries to get it by an application and bond, if any bond was required, we come to the main question in this case. It is one of the main questions. It seems to us to be one of the important questions. [“Prior to the payment of this $25.00 for the license, there had been an Act of Legislature passed and 'approved, known as the Act of May 24, 1887, which provided an altogether different way of procuring a license as a brewer, and also as a bottler, if a bottler’s license was necessary. It seems, from the uncontradicted evidence here, that Mr. Schott did not procure a license under the old law— that he did not pay the money and procure the license until May 25, 1887. Now, as a matter of law, he had no more authority or privilege to pay for this license on May 25, than if he had paid for it one or two or three months afterwards. There' was another law in force. He had seen fit up to that time not to take a license, and there was a law in force which required the payment of a different sum, and a different mode of action entirely, and therefore we feel, in the brief time for reflection that we have had in this case, that we should instruct you that he had no license, and that Mr. Schott had no license, and was not entitled to go to Port Allegany and carry on this business until he had obtained a license as a brewer. If we are correct in that, you will see very plainly, under this evidence, what your duty would be; it would be very plain.] [4] [“ But there is another point that we should call your attention to. As we understand it, a brewer, who has taken a license and paid a proper fee, can manufacture beer if authorized by his license, and sell his manufactured article. It is an incident belonging to his license, and he can sell it at any one point in the county where he procures his license. He need not sell it where he-manufactures the article. He can sell it at Port Allegany or any other point where he desired to establish a store and sell his manufactured article, in quantities not less than the law provided. But if he chooses to sell it away from where he manufactures it, then he must not sell it where he manufactures it: He can not have two established places to sell the article. If he could, he could have as many places as there were townships and boroughs in the county, and more, too, if he wanted to. Surely that was not the intention of the law. The intention of the law was that if a brewer or manufacturer of liquors wished to engage in business and sell his product, that he should procure a license, and he could manufacture it anywhere in the county and sell it at any feasible place in the county that he liked.] [5] “ The view that we take of this case does not make it necessary that we should instruct you as to bottling questions that have been raised here. I think very likely there is considerable in it, whether this defendant, — even if Mr. Schott had a brewer’s license, and had not been selling at Farmer’s Valley, if you find from the evidence that he did sell there, and it is our duty to say to you that we do not see how you could avoid finding it, for he says himself that he sold to a great rhany people there, not to be drank there, but he sold it as he would have had a right to have sold it, had he not been selling in Port Allegany — [and if he was selling at Farmer’s Valley, as he says he was, and if this had been a license, he could not sell at Port Allegany also, as we view the law,] [6] — and whether Zinner, if he had been there as the agent of Schott, and if Schott had a right to sell there, could have bottled his beer and sold it as he did, we do not think it necessary to instruct you upon .at this time. Our instructions will undoubtedly aid you to dispose of the case without going into that question. [ “ Therefore we say to you that, as we understand the law and the undisputed facts in this case, no valid defense has been shown in behalf of this defendant; every man is bound to know the law. If Mi-. Schott desired to sell beer at Port Allegany, he should have complied with the law first; and if this defendant saw fit, as his agent, to do this business, it was a duty incumbent upon him, and he owed it to the commonwealth, to himself and to the law to know whether Mr. Schott had a right to authorize him to sell beer at this place. And if he had no license, and no rights, then, under the undisputed evidence, it would be your duty to find him guilty as indicted.] [7] “ We have been asked by counsel for defendant to answer certain points in writing, which we will now proceed to do : “'1. If the jury believe from the evidence that the defendant acted as the agent of Erwin Schott in the sale of his brewed liquors, said Schott having been licensed and having paid a mercantile tax of $25.00 to the treasurer of McKean county, as a brewer, under the then existing law, for one year, from May 1st, 1887, to May 1st, 1888, and that said defendant only sold the brewed liquors of said Schott, and in quantities not less than one dozen bottles, as agent for said Schott, then and in that case the defendant cannot be convicted under the Act of May 13th, 1887, under which the indictment in this case was found, and the verdict of the jury should be in favor of the defendant, “ not guilty.”’ Answer: Under the undisputed evidence in this case, we answer this point in the negative, because we have already instructed you that he had no license; and we have instructed you that, under the undisputed evidence, he was selling at two places in the county, and that it would not protect the defendant at that place. [1] “ ‘ 2. Erwin Schott, a brewer, having been licensed according to law, and having paid a mercantile tax of $25.00 to the treasurer of McKean county, for one year, commencing May 1st, 1887, and ending May 1st, 1888, his agent, the defendant, making sale in accordance with the law under which the license had been granted, and said license being in force, the defendant was not affected by the Act of May 13, 1887,'and the verdict of the jury should be “not guilty.” ’ Answer: As before stated, under the undisputed evidence in this case, as proved and conceded, we answer this in the negative. [2] “ ‘ 3. Under the law existing and under which Erwin Schott was licensed as a brewer by the treasurer of McKean county, he had a right to ship his lager beer from his brewery, to-wit, in Keating township, McKean county, to Port Allegany, in said county, and there store and sell by his agent, the defendant, in compliance with the provisions of existing laws under which he had been licensed, and for so doing the defendant, his agent, cannot be convicted under the Act of May 13th, 1887, and the verdict of the jury should be “not guiity.”’ Answer: As we have already stated in answer to the other points, under the facts of this case, we answer this in the negative. [3] [ “ Now, gentlemen, while our instructions have been rather specific, and we intended them so to be, so that there would be no mistake ; if we are wrong on the law, there is a way to right us; they go on the record, and, if we are in error, the supreme court will correct us. Still, in cases of this kind, where the defendant is on trial for a crime or misdemeanor, the jury are to judge of the facts and the law, and say whether he is innocent or guilty. We do not intend to take this case away from you and tell you just what you should do, but having been asked to instruct you upon the law, we intended to instruct you so that you should understand our view of it, and submit the whole question to you under the law as we understand it, and you will consider the evidence and what it proves, and bring in your verdict. But, as has been said in your hearing by the counsel and by the court, there does not seem to be any serious question at all about what the evidence is. It is for you to say what the evidence proves, and to dispose of the case.”] [8] Verdict, guilty. Subsequently the court sentenced the defendant to pay a fine of $500, the costs of prosecution, and to undergo imprisonment in the county jail for the period of three calendar months, and to stand committed until sentence be complied with. The defendant then took this writ. The assignments of error specified, 1-3, the answers to defendant’s points, quoting the points and answers; 4-8, the portions of the charge enclosed in brackets, quoting them; and, 9, the sentence of the court, quoting it. Schott was bound by the Act of Assembly in force on May 1, 1887. He continued in business as a brewer, and he could not set up any valid defense to the payment of the license-fee of twenty-five dollars ascertained and taxed against him as a brewer. Nothing can be predicated on his neglect to pay the mercantile tax assessed and taxed against him as a brewer, anterior to May 1, 1887, nor to the payment of the twenty-five dollars on May 25, 1887, one day subsequent to the approval of the Act of May 24, 1887. Nor could the county treasurer have enforced the payment till July xoth of that year: Act of April 11, 1862, Purd., page 1695. If it could not be enforced in an action, how can it be argued he had not within the specified time to make the payment, and having been paid by the licensee in accordance with the existing laws which ascertained, assessed and taxed him, his agent, the plaintiff in error, was protected from prosecution under the Act of May 13th, 1887, which made no provision for classification or for the licensing of brewers. The repeal of a license law will not affect the validity of licenses under it for their unexpired term, but will prevent prosecution for a violation of their provisions : State v. Andrews, 28 Mo. 14,19. The payment of the license-fee by Erwin Schott, the principal, under the Acts of 1849, 1856 and 1858, at any time before July 10th, was immaterial, and having been paid within the time limited, dated back to May 1, 1887, to continue in force one year thereafter, expiring May 1, 1888. In our 4th assignment of error, we claim there was a misdirection by the court trying the case, in point of law, on matters material to the issue, and such misdirection was error, even though it was upon one point, although the jury may have founded their verdict upon another point as to which there was no misdirection : State v. McCluer, 5 Nev. 132; People v. Bodine, 1 Denio. 281; Heins v. State, 4 Miss. 318 ; Bailen v. State, 36 Tex. 98. And material error in one instruction, calculated to mislead, however, is not cured by a subsequent contradictory instruction: Clem v. State, 31 Ind. 480; Howard v. State, 50 Ind. 190. The plaintiff in error was indicted, tried and convicted under the Act of May 13, 1887, P. L. 108, entitled “An Act to restrain and regulate the sale of vinous, malt or brewed liquors, or any admixture thereof.” The proviso, in § 2, is as follows : “ Provided that licenses under previous laws shall not be granted later than June 30 of this year.” This Act did not apply to wholesale dealers or brewers at all. The Act of May 24, 1887, P. L. 194, entitled “An Act providing for the licensing of wholesale dealers in intoxicating liquors, in §1, provided “that all wholesale dealers, brewers, etc., shall pay an annual license, etc.” Section 2 provided “ that licenses shall be granted only by the court of quarter sessions of the proper county, in such manner as is provided by existing laws, and shall be for one year from a date fixed by rule or standing order 'of said court; the said court shall fix, by rule or standing order, a time at which applications for said licenses shall be heard, at which time all persons applying or making objections to applications for license may be heard, by evidence, petition, remonstrance or counsel: Provided, That for the present year licenses may be granted under previous laws at any session fixed by said court, not later than June 30.” It will thus be seen that the proviso referred to in § 2 of the Act of May 24, 1887, is almost identical to that of the Act of May 13, 1887. And in construing § 3 of the Act of May 13, 1887, this court said: “ The effect of the third section of the Act of May 13th, 1887, P. L. 108, is to permit the granting of licenses under former laws, up to June 30, 1887.” Warren Sanders v. Com., 9 Cent. 800. By parity of reasoning, we contend that the Act of May 24, 1887, did not become operative as a law until June 30, 1887, the time fixed when no further licenses under previous laws should be granted to brewers, thus implying the date when it should go into effect. If we are correct in this, surely it was error in the court holding the converse and upon a point that was material to the issue. The penalties under the Act of 1849 should be strictly pursued: Act of March 31, i860, P. L. 426. The Act of May 24, 1887, being in restraint of liberty, should be strictly construed: 1 Wharton, Cr. L., §§ 28 and 29. As to the 7th assignment: A distinction is to be noticed in cases in which the gravamen is negligent ignorance of law. On indictments for negligence in application of law, non-specialists are not chargeable writh ignorance of specialty: 1 Wharton, Cr. L., § 85. In charging the jury, “ No valid defense has been shown in behalf of this defendant, &c.,” the court, in effect, ignored the defense set up by the defendant, and indicated and directed with emphasis the verdict of the jury. “ No court should give a binding instruction to a jury which they are powerless to enforce by - granting a new trial if it should be disregarded.” Kane v. Com., 89 Pa. 522. The court gave the equivalent of a binding instruction, in saying to them that the principal, or the agent, the plaintiff in error, “ had no license, and, even if he had, he could not have two established places to sell the article.” Surely these were material questions wholly for the jury, and the instructions tended to mislead and withdraw from their consideration the evidence and facts put in by the defendant and upon which he relied. There is nothing in the Acts of 1849, 1856 and 1858, indicating the number of places in which a brewer could ship, store, bottle and sell his brewed liquors, and none of which had been bottled upon the brewery premises, under pain of forfeiture to the United States, and the sales that had been made were only such as had been made by the principal, receiving ordei's and delivering the beer to buyers from the brewery. It has never been judicially determined in Pennsylvania under pre-existing laws, whether one or more licenses would be required of brewers or others who manufactured liquors and bottled and sold it on their premises, or in stores separate and apart therefrom. The agent could not be visited with the acts of the principal, in the absence of any evidence showing a knowledge on his part of any sale or sales by the principal at another point than that of the designated agency. In Britton v. Com., 105 Pa. 311, the sale or sales had been made by the distiller, the defendant, at a different place than where the article was manufactured, and there was no agentas in the case at bar. The Act of May 24, 1887, contains no express words repealing former laws, but should the court conclude that the said laws were not repealed, by§ 19, of said Act of May 13, 1887, they are certainly repealed by implication. A subsequent affirmative statute is a repeal, by implication, of a former one made concerning the same matter, if it introduce a new rule upon the subject and it be evidently intended as a substitute for the former law; although it contains no express words repealing it: Johnston’s Est, 33 Pa. 511-; Com. v. Cromley, in Pa. 181; Abbott v. Com., 8 Watts, 517. Under the express terms of the proviso to the Act of May 24, 1887, only the court of quarter sessions could grant licenses “under previous laws.” Under our view of the case, the Acts of 1849, 1856, and 1858 having been repealed by the Act of May 24, 1887, the receipt (or license) for which Schott paid on his brewery at Farmer’s Valley, did not in any manner protect the alleged agent, Zinner, in bottling and selling beer in the borough of Port Allegany. A proceeding which is imperfect when the Act of Assembly under which it was begun expires, cannot be perfected; what is done afterwards is void: Stoever v. Immell, 1 Watts, 258; Abbott v. Com., 8 Watts, 517; Fenelon’s Petition, 7 Pa. 173. It clearly appears from Britton v. Com., 105 Pa. 311, that the defendant was not entitled to sell in more than one place in the county. The defendant was not injured by the charge. Although parts of a charge, when taken separately, may seem to be erroneous "and indicate a leaning to one side or the other, yet there is no error, if, taken as a whole, the questions at issue are fairly left to the jury: Reese v. Reese, 90 Pa. 89; Little Schuylkill Navigation Co. v. French, 81* Pa. 366; Johnston v. Com., 85 Pa. 54.