Commonwealth v. Intoxicating Liquors

Hammond, J.

Subject to the power of Congress over foreign and interstate commerce, the right of a State to regulate by reasonable laws the manufacture, sale, or transportation of spirituous or intoxicating liquors within its own territorial limits is established by numerous decisions, both of State and national courts. Such a law is not inconsistent either with the Constitution of our State or that of the United States. It comes well within the authority called the police power, subject to which, in various ways, all private property is held, and it is unneces *315 sary to restate here the principles upon which it rests. Commonwealth v. Blackington, 24 Pick. 352 . Commonwealth v. Kendall, 12 Cush. 414 . Commonwealth v. Clapp, 5 Gray, 97 . Commonwealth v. Williams, 6 Gray, 1 . Commonwealth v. Bennett, 108 Mass. 27 . Commonwealth v. Intoxicating Liquors, 115 Mass. 153 . Commonwealth v. Ducey, 126 Mass. 269 . Beer Co. v. Massachusetts, 97 U. S. 25 . License Cases, 5 How. 504 . Leisy v. Hardin, 135 U. S. 100 . Carstairs v. O’Donnell, 154 Mass. 357 . Mugler v. Kansas, 123 U. S. 623 , and cases therein cited.

And we do not see that St. 1897, c. 271, goes beyond the fair and reasonable exercise of that right. The first section provides that “ All spirituous or intoxicating liquors to be transported for delivery to or in a city or town where licenses of the first five classes have not been granted, when to be transported for hire or reward, shall be delivered by the seller or consignor to a railroad corporation or to a person or corporation regularly and lawfully conducting a general express business, in vessels or packages plainly and legibly marked on the outside with the name and address, by street and number, if there be such, of the seller or consignor, and of the purchaser or consignee, and with the kind and amount of liquor therein contained.” It then provides that delivery of any part of such liquors “ to any pei’son other than the owner or consignee whose name is marked by the seller or consignor on said vessels or packages, or at any other place than thereon marked, shall be deemed to be a sale by any person making such delivery to such person in the place where such delivery is made.” Section 2 provides that the carrier shall keep a certain detailed record of the reception and delivery of such liquors. Section 3 provides that all packages containing intoxicating liquors addressed contrary to the provisions of this act, or to a fictitious or unknown person, or to a person who cannot be found, shall be declared forfeited to the Commonwealth.

The act was manifestly intended to m,cet some difficulties which had been encountered by the government in the prosecution of common carriers for illegal keeping of intoxicating liquors, and to make it more difficult for the guilty to escape detection when . setting up the fraudulent defence that the *316 liquors found in the possession of the carrier were for delivery by him as such to some person.

It is only one of the many statutes which indicate that the policy of the Commonwealth is to require that the traffic in liquors in this State shall be open, so that every step shall be exposed to the scrutiny of the authorities, and that the violation of the law may be the more easily detected. Examples of this policy are to be found in the third section of chapter 100 of the Public Statutes, requiring a druggist to keep a record of his sales, which record shall be at all times open to the inspection of certain public officers; in the ninth section, which provides that the license shall be displayed upon the premises in a conspicuous position; in'the twelfth section, which provides that “No . . . licensee shall place or maintain, or permit to be placed or maintained, upon any premises used by him for the sale of spirituous or intoxicating liquor under the provisions of his license, any screen, blind, shutter, curtain, partition, or painted, ground, or stained glass window, or any other obstruction, or shall expose in any window upon said premises any bottle, cask, or other vessel containing, or purporting to contain, intoxicating liquor, in such a way as to interfere with a view of the business conducted upon the premises ”; and in the fifteenth section, which provides that certain public officers may enter upon the licensed premises to see how the business is conducted, and may take samples of the liquor for examination and analysis.

Nor is there any ground for saying that the forfeiture is to be regarded as in the nature of an excessive or unusual punishment.

The first seven requests, therefore, were rightly refused.

The eighth request concerns more particularly the judicial proceedings for enforcing the forfeiture. The statute named no way of enforcing such forfeiture, and hence the only way was through the provisions of Pub. Sts. c. 194, the proceedings under which are carried on upon the civil side of the court. In this state of the law, St. 1897, c. 487, was passed, the second section of which is as follows: “ The provisions of chapter one hundred of the Public Statutes, relating to the seizure and forfeiture of intoxicating liquors, shall apply to the provisions of *317 chapter two hundred and seventy-one of the acts of the year eighteen hundred and ninety-seven.”

These provisions are to be found in Pub. Sts. c. 100, §§ 30—46, both inclusive. They were framed with great care, and contain specific and complete directions for the seizure and forfeiture of liquor illegally kept for sale. They are frequently invoked for that purpose, and we do not understand that their constitutionality as now existing is contested by the claimant.

The Legislature desired to have the process for perfecting the forfeitures under St. 1897, c. 271, carried on upon the criminal side of the court, and they had already upon the statute book a complete, long established, and constitutional system provided for similar cases, and so the second section of St. 1897, c. 487, was passed.

It is contended by the claimant, in his brief, that these provisions of Pub. Sts. c. 100, “ do not fit the case, and are wholly inadequate to meet the constitutional requirements. An honest effort to apply them wholly fails. They are framed to provide for the destruction of liquors intended for sale contrary to law. This is the gist of the offence. Such intent has to be sworn to before process will issue, and it must be alleged in both the complaint and the warrant.” Also that “ they prescribe a course of proceeding which meets all the exacting constitutional requirements where keeping with intent to sell is the ground for the forfeiture. But they are not at all adapted or suitable for chapter 271, where no intent to sell need be shown, and where the grounds for the forfeiture are very different.”

An examination of these sections of Pub. Sts. c. 100, shows that (§ 30) to procure a search warrant the oath or affirmation must be that the deponents have reason to believe, and do believe, that liquor is kept in a certain place “ and is intended for sale contrary to law,” or has been brought into a town “ in violation of the provisions of section seventeen” of Pub., Sts. c. 100, and the magistrate or court, “ upon its appearing that there is probable cause to believe said complaint to be true, shall issue a warrant of search.”

The other sections provide for the service of the warrant, notice to parties, and a hearing, and (§ 37) “ If it appears that the liquor, or any part thereof* was at the time of making the *318 complaint owned or kept by the person alleged therein, for the purpose of being sold in violation of law, the trial justice or court shall render judgment that such and so much of the liquor so seized as was so unlawfully kept, and the vessels in which it is contained, shall be forfeited to the Commonwealth.”

It appears that the whole foundation of the proceedings and the cause and ground of the forfeiture are that the liquors are kept “ for the purpose of being sold in violation of law.”

But the cause and ground of forfeiture declared in St. 1897, c. 271, is that the liquors are in the hands of a common carrier for transportation to a town where certain licenses have not been granted, and are intended for delivery contrary to law, and the proceedings to enforce such forfeiture, including the decree of the court declaring it, must be based upon that ground.

If, therefore, the second section of St. 1897, c. 487, is to be construed as meaning that in every respect these provisions of Pub. Sts. c. 100, are to be followed, whether applicable or not, we have an interpretation which is not only unconstitutional, but is nonsensical. As stated in the claimant’s brief, “ an honest effort” to apply the provisions “ wholly fails.”

It is to be presumed, however, in the absence of anything to the contrary, that the Legislature intended to say only that which it had the constitutional right to say, and no statute will be construed so as to render it unconstitutional if there be any constitutional interpretation reasonably possible.

As was stated by Shaw, C. J., in Commonwealth v. Kimball, 24 Pick. 366 , 370, “It is unquestionably a well settled rule of construction, applicable as well to penal statutes as to others, that when the words are not precise and clear such construction will be adopted as shall appear most reasonable, and best suited to accomplish the objects of the statute; and where any particular construction would lead to an absurd consequence, it will be presumed that some exception or qualification was intended by the Legislature to avoid such conclusion.” Proceeding under this rule of interpretation, we think that St. 1897, c. 487, § 2, may be taken to mean that with the proper modification of the oath and adjudication as suggested and required by the ground of forfeiture under St. 1897, c. 271, the general form of machinery set out in the provisions of Pub. Sts. c. 100, for *319 enforcing forfeitures, is applicable and is to be followed. This interpretation provides for the rights of all parties, is “ best suited to accomplish the objects of the statute,” namely, the judicial declaration of the forfeiture incurred under St. 1897, c. 271, appears most reasonable, violates no rule of construction, and is constitutional.

The court properly refused to give the eighth request.

Exceptions overruled.