State v. Miller ( 1909 )

Poffenbarger, Judge:

On the following statement of facts, agreed to, John 'Miller was convicted, in the circuit court of Mineral county, and adjudged to pay a fine of $25.00 and sentenced to imprisonment in the county jail for two months: The defendant John Miller, is the representative of M. J. Miller’s Sons Company, a corporation, wholesale liquor - dealers of Westernport, Maryland. As such representative, the said John Miller, on the . day of December, 3 908, went to Elk Garden, Mineral county, West Virginia, and solicited and received from John Doe an order for one keg of beer an intoxicating drink; that the said John Doe, at the time of giving the order, paid to the said John Miller for the said M. J. Miller’s Sons Co., $2.00 for said beer; that, after receiving said order and said sum of money, the said John Miller sent said money and order to the said M. J. Miller’s Sons Company and said order was filled and shipped by said company by express from Westernport, Maryland, within a day or two after said order was given, and was received by the said John Doe at Elk Garden, Mineral county, West Virginia, and that the said John Miller had no license to sell or solicit and receive orders for intoxicating drinks in Mineral county, and that the said John Miller is a resident and citizen of the state of Maryland.

Eelying upon the decision in State v. Lichtenstein, 44 W. Va. 99, he challenges, on his writ of error, the correctness of the judgment.

I am not prepared to say the decision in the Lichtenstein Case was wrong, though the reason assigned therefor may not be tenable. Prior to the act of Congress, known as the “Wilson Act,” passed August 8, 1890, section 1 of chapter 32 of the Code did not inhibit soliciting orders for liquors in this State, as the basis of sales to be consummated in, and shipments to be made from, places in other states. If the legislature intended the statute to have such scope and effect, it was, to that extent, in conflict with federal interstate commerce law and, therefore, viod for want of power in the state legislature to enforce it. This limitation upon the power of the state was removed by the “Wilson Act,” but the state statute had been previously passed, at a time when, by reason of the limitation, it could not take effect and was void, in so far as it contemplated such transactions. As to them it was a dead, worthless thing. The removal of the limitation by the act of Congress did not convert it into a valid statute nor put life or efficacy into it. That could be done only by re-enactment by the state legislature, and, between 1890, the date of the removal of the limitation upon the state’s power, and 1897, the date of the decision of the Lichtenstein Case, this had not been done. A void statute can be made effective only by re-enactment. State v. Tufly, 20 Nev. 374; Comstock &c. Co. v. Allen, 19 Nev. 325; Jones v. McCaskill, 112 Ga. 453; Erie v. Brady, 150 Pa. 462; Seneca Mining Co. v. Osmun, 82 Mich. 573; Banaz v. Smith, 133 Cal. 102. There is a line of federal cases to the contrary, commencing with In re Rahrer, 140 U. S. 545, but they do not answer satisfactorily to my mind, the argument and considerations upon' which the opposite conclusion rests, and the federal decisions are not binding on questions, arising in the construction of interpretation of state laws. In the Rahrer Case three of the ablest justices of the court refused to concur in the reasoning by which the conclusion was reached.

But this ease stands in a different situation. Since 1897, section 1 of chapter 32 of the Code has been re-enacted. See Acts 1905, chapter 36. From and after the date on which this act became effective, it has been in force to the full extent of legislative intention. It is general in its terms, making no exception in favor of non-resident’ dealers, authorized to sell by the laws of the states in which their places of business are located, and forbids the selling, offering and exposing for sale, and the soliciting and receiving orders for, spirituous, and all other intoxicating liquors and liquids, without a license, authorizing the same. ’We have held that a license to sell, includes the right to solicit, even in counties other than that in which the license was procured, but we have never decided that orders may be solicited or taken by one having no license at all, nor do we see how the statute can be so construed as to uphold such a conclusion. No pretention of that kind is set up here. The only contention is that the statute does not apply to the soliciting of orders as a basis of sales to be made outside the state, but, as we have said, there is no exception of that kind in its terms. Lack of power in the state legislature to interfere with such transactions, on the theory that they are within federal protection, as interstate commercial transactions, is the sole ground of the argument for immunity from the operation of the statutory provision. Once this position was tenable, but it is no longer so. The “Wilson Act” utterly destroyed it. Delemater v. South Dakota, 205 U. S. 93. We need not here repeat the opinion in that case. This conclusion was indicated in the opinion of Judge Miller in State v. Marks, 65 W. Va. 523.

The sale involved here was a sale at retail. Whether, in the ease of a solicitor for a non-resident wholesale dealer, our conclusion would be the same, we are not called upon to say, nor have we examined the statute in the light of such a case.

For the reasons stated, the judgment will be affirmed.

Affirmed'.