Scanlan v. Childs , 33 Wis. 663 ( 1873 )

Dixosr, 0. J.

It would be a surprise to the legal profession, as well as the business community, we think, were it now to be held that the manufacturer of ale or beer residing within this state and selling the same only by the barrel, keg or cask, not to be drunk or disposed of, in quantities large or small, in or about bis manufactory or premises, but only to be retailed, dealt in and used at other places and by other persons, is required by the excise laws to take out a license for such sale. This would be so, we think, because such has never been the understanding or practice in any part of the state under the excise laws, the provisions of which have been and remained substantially the same for a period of more than twenty years, that is, since the year 1851. Laws of 1851, ch. 162, secs. 1, 2, 5 ; R. S., 1858, ch. 35, secs. 1, 2, 5; 2 Tay. Stats., 728-730, §§ 1, 2, 5. The general understanding of a law and constant practice under it for so long a period by all the officers of government whose duty it has been to execute it, unquestioned by any suit brought or public or private action instituted to test or settle the construction in the courts, ought to be very strong, if not conclusive, evidence of its true meaning and application, and that they are such as it has thus received. The manufacture of ale or beer or of any spirituous or intoxicating liquor has never been prohibited by legislative enactment, nor has a license for such manufacture been required or any duty or impost laid thereon by statute. The statutes of the state are silent upon the subject, so that the manufacture cannot but be a lawful pursuit or business ; and, that being so, it seems to follow that the sale in packages or casks, according to custom among the makers of such articles, is also lawful, unless such sale is regulated or restrained by some express statutory provision. The authority to make implies the authority to sell in the accustomed way, except so far as the legislature has imposed some positive restriction or expressly enacted to the contrary. In the absence of any such statutory restriction, the implied right to sell is, as observed by counsel for the defendant, like that arising under the laws of congress regulating trade and commerce with foreign countries, where the authority given to import has been held necessarily to carry with it to the importer the right to sell the imported article in the form and shape in which it was imported, namely in the original bale, package or vessel as brought in from the foreign country. Brown v. Maryland, 12 Wheaton, 419 ; License Cases, 5 How., 504, 574. The question presented, therefore, is, whether this implied right has been abridged or taken away by the provisions of the excise law above cited; and it seems clear to our minds it has not. It is plain from the reading that those provisions apply only to the vending of liquors, at wholesale or retail, by persons who buy for that purpose and to carry on that business, and not to sales by manufacturers of articles made by themselves, and put up and disposed of in quantities to dealers according to the usual course of such manufacture and of the trade connected with it. Particular comment on the language of the statute is deemed unnecessary, but such is the conclusion which, we think, must be arrived at from the whole tenor and scope of its provisions, and the legislative intent manifested by them. The statute may contain words, it is true, which by latitude of construction might include such sales by manufacturers ; but those are restrained, and such construction forbidden, by the context. The practical construction, that which has been so long given to the statute by the executive and administrative officers, is, in our judgment, the correct one; and it. must accordingly be held that the sales in question by the manufacturer were lawful, notwithstanding he had obtained no license to make them.

And this conclusion is confirmed by the consideration, also alluded to by counsel, that no adequate or suitable provision is made by statute for the licensing of such sales by manufacturers, a circumstance which tends very strongly to show that the obtaining of a license was not intended.

The charter of the city of Janesville, the provisions of which are quoted in the brief of counsel for the defendant, seems also to have been relied on as requiring a license. We quite agree with the same counsel that the charter does not extend the operation of the excise law to new cases within the city, but that it was enacted in subordination to that law and in order to give effect to its requirements in the city, as the same are enforced or intended to be elsewhere throughout the state.

We find no other decision upon the question here considered, except that cited by counsel, and which is directly in point, supporting the views we have felt obliged to take. The City of St. Paul v. Troyer, 3 Minn., 291.

The foregoing remarks dispose of all the propositions of law involved in the exceptions taken on the trial in the court below, and all that can be considered on this appeal. It follows that the judgment appealed from must be reversed, and a new trial awarded.

By the Court. —It is so ordered.