State v. Intoxicating Liquors , 82 Me. 558 ( 1890 )

Peters, C. J.

The undisputed facts in these cases show that the liquors, which the state claims to confiscate as being in the possession of the respondent Burns for unlawful sale, were imported by him from England, were his property, were in the original and unbroken packages, and in the same condition, as when imported ; and that, at the date of the seizure, he had them in his possession with the intent to sell the same only in such original and unbroken packages, and in the same condition as when imported ; and had established himself in a place of business in the city of Augusta for that purpose.

There is no doubt, that formerly it was both the judicial and legislative opinion in this state, that such liquors could be legally sold by the importer in the condition as when imported, notwithstanding any general enactments against liquor-selling in the state where sold.

In State v. Robinson, 49 Maine, 285, Davis, J., (in 1862) speaking for the court, said: “Upon this point, the line of division- between the power of the general government and that of the state, has been settled. Under the power granted by the constitution to regulate commerce with other nations, congress may authorize a person to import intoxicating liquors, and to sell the same in the original packages. But here the power of congress ceases, and the jurisdiction of the state begins. Brown v. State of Maryland, 12 Wheat. 419. No one but the importer himself has the right to sell, except as allowed by the laws of the state; and he can sell only in the original packages. The power of the state is plenary to regulate or prohibit all sales, except such as are thus made by the importer himself. Those' who purchase from him have no such right to sell. The License Gases, 5 Howard, 504.” Concurrence in this view will be found in other cases. State v. Blackwell, 65 Maine, 556; State v. Intoxicating Liquors, 69 Maine, 524. Nisi prius rulings to the same effect were frequently made.

The idea entertained formerly by the legislature on this subject is seen in several legislative acts.

Chapter 205 of the laws of 1846, contains the first prohibitory enactment in this state. Prior thereto different license laws had been maintained. Section 2 of that chapter is as follows: “The provisions of this act shall not extend to wine or spirituous liquors, which shall have been imported into the United States, from any foreign port or place, when not sold in less quantities than the revenue laws of the United States prescribe for the importation into this country, and delivered and carried away at one time.”

The foregoing provision remained in the law until a more. intensified act was passed in 1851, in which it was substantially retained with different phraseology. The new act placed a stronger burden of proof upon a respondent, rendering him liable to punishment, for selling liquors or for having them in his possession for sale ; “unless he can show by positive proof that such liquors are of foreign production, that they have been imported under the laws of the United States, and in accordance therewith, that they are contained in the original- packages in which they were imported, and in quantities not less than the laws of the United States prescribe.” The following was added to the new act, § 11, c. 211: “But custom-horrse certificates of importation and proof of marks on the packages corresponding thereto shall not be received as evidence that the identical liquors contained in said packages and casks were actually imported therein.”

The exemption from liability for selling imported liquors stood through different enactments until the year 1858, when it was in most part dropped from the statutes touching the sale of intoxicating liquors, there being left only the clause relating to what should not be taken as evidence that liquors were imported, the same that is now embodied in § 55, of c. 27 of our present revised statutes. Laws of 1858, c. 88, § 25.

After these decisions of the court and enactments of the legislature, so much change had been wrought in the public sentiment on this and kindred questions, that it became in the public mind a debatable point whether the rule as laid down in Brown v. Maryland, so far as affecting ‘the sale of imported liquors in a state in which the sale of intoxicating liquors is by its laws forbidden, would on reconsideration be adhered to by the supreme court of the United States. The ruling in the present cases, in the court below, was in a measure to test the question whether the principle of the case alluded to would be sustained as applicable to the facts of the present record.

But the case of Gus. Leisy et als. v. Hardin, just decided by the supreme court of the United States on full consideration, seems to clearly settle the question, and to require us, as we are bound on such questions by the law as determined by that court, to reverse tbe rulings below, and sustain the law according to the respondent’s contention. The opinion of a minority of the judges sitting in that case appears to be very elaborate and exhaustive of the questions involved, and may commend itself to many as containing the better conclusion. Our obedience is due, however, to the judgment which prevails; not that our statute is unconstitutional, for it prohibits only the “unlawful sale” of intoxicating liquors; but that its interpretation must be constitutional.

Exceptions sustained.

Walton, Virgin, Libbey, Emery and Foster, JJ., concurred.