Citation Numbers: 1 Ga. L. Rep. 605
Judges: Royce
Filed Date: 3/15/1886
Status: Precedential
Modified Date: 9/8/2022
1. The first and most important question presented by these cases is, whether or not the intoxicating liquors in question were, in the first two cases, in contemplation of law, sold or furnished, by the respondent in the county of Rutland and State of Vermont; or, in the last two cases, held and kept for the purpose of sale, furnishing, or distribution contrary to the statute, within said county and State. The answer depends upon whether the National Express Company, by which some of said liquors were delivered to the consignees thereof, and
The liquors were ordered by residents of Vermont-from dealers doing business in the State of New York, who selected from their stock such quantities and kinds of g.oods as they thought proper in compliance with the terms of the orders, put them up in packages, directed them to the consignees, and delivered them to the express company' as a common carrier of goods for transportation, accompanied with a bill, or invoice, for collection. . The shipment was in each instance, which it is necessary here to consider, “ C. O. D.,” and the cases show that the effect of the transaction was a direction by the shipper to the express company not to deliver the goods to the consignees except upon payment of the amount specified in thq C O. D. bills, together with the charges for the transportation of the packages and for the return of the money paid. This direction was understood by the express company, which received the shipments coupled therewith.
Whether or not, and when, the legal title in the property sold passes from the vendor to the vendee, is always a question of the intention of the parties, which is to be gathered from their acts, and all the facts and circumstances of the case taken together. In order that the title may pass, as was said by Morton, J., in Mason vs. Thompson, 18 Pick. 305, “The owner must intend to part with his property, and the purchaser to become its immediate owner. Their two minds must meet on this point; and if anything remains to be done before either assents it may be an inchoate contract but it is not a perfect sale.” The authorities seem to be uniform on this point; and the acts of the parties are regarded as evidence by which the court or jury may ascertain and determine their intent. Benjamin on Sales, §§311, 319, note c. When there is a condition precedent attached to the contract, the title in the property does not pass to the vendee until performance or waiver of the condition, even though there be an actual delivery of possession. Ben'*' jamin on sales, §320, note d. The Vermont cases to the above points are referred to in Roberts’ Digest, 610 etseq., and need not be specially reviewed here.
The authorities upon the above points and principles are so numerous and are so fully collated in the brief of the learned council for the state, and in the text and notes of Benjamin on Sales (4th Am. ed.) bk. 2, that we refrain from specific references in support of the conclusions at which we have arrived. These are lutly supported by the decision of the United States district court in Illinois in People vs. Shriver, 31 Alb. L. J. 163, a case involving precisely the same question. Treat, J., says in the opinion: “ In the case of liquor shipped by-the defendant
II. It is insisted on the part of the claimant, in the case of Statens. Sixty-eight Jugs, etc., that §2 of No. 43 of the Acts of 1882, under which the liquors in that case were seized, is unconstitutional. Conceding the points contended for by the learned counsel for the claimant, that there is a well-recognized right of property in intoxicating liquors, that they are not malum in se, and that their use by law is not prohibited to citizens of this State, these propositions are, nevertheless, clearly subject to the qualification that when kept and intended for unlawful use, such liquors fall at once under the ban of the law and become subject to seizure and confiscation by such methods as are provided by law in confor
This section gives the officer power to seize without warrant liquor found under circumstances warranting the belief that it is intended for sale or distribution contrary to the provisions of c. 169, R. L. It does not purport to confer the power of search; nor does anything appear to •show that the officer assumed to exercise such power in this case. It simply provides for the seizure, without warrant previously issued, of something which the law has declared subject to seizure and condemnation, under the police power delegated by the Constitution, as an instrument intended by the owner or possessor for a use unlawful by express statute, and dangerous to the peace, health, and good morals of the community. That the article in itself may be inocuous, may be • subject of lawful ownership, or may even be susceptible of beneficial use, can no more affect the question than could the fact that certain tools were susceptible of lawful and beneficial use in mechanics save them from becoming subject to seizure and confiscation if intended by their owner or-possessor for use as the instruments for accomplishing a •contemplated burglary; or the harmless character of the metal and its owner’s right of property, therein to protect his ownership when fashioned and intended for passing as'counterfeit coin. It cannot be doubted in this state since the case of Spaulding vs. Preston, 21 Vt. 9, and has ■not been elsewhere, so far as we are aware, that articles or instrumentalities once impressed with the characteristics of adaption and intended ■use for purposes prohibited by law and contrary to the public peace, health or morals, are subject to summary seizure under statutory or ■even general police regulations. That the liquors in question were intended for such use has been determined in this case as a question of ■fact by the tribunal designated by law, and that adjudication is conclusive.
The scope and application of art. 5, part 1 of the Constitution have •been defined by this court in the cases above referred to, and in In re Powers, 25 Vt. 265, which has ever since been regarded as conclusive •against such application of that section of the bill of rights as is here •contended for by the claimant. See Gill vs. Parker, 31 Vt. 610; State vs.
III. Concerning the claim that §8 of the Federal Constitution, conferring upon Congress the exclusive right to regulate commerce between the states has application, it is sufficient to say that no, regulation of, or interference with, interstate commerce is attempted. If an express company, or any other carrier or person, natural or corporate, has in possession within this State an article in itself dangerous to the community, or an article intended for unlawful or criminal use within the State, it is a necessary incident of the police powers of the State that such article should be subject to seizure for the protection of the community. It would certainly be a strange perversion of language to claim that if this express company were to hold in possession within this State clothing infected with small pox or yellow fever, or tools with which it was intended to commit a burglar}', the State government should be powerless to protect its citizens by seizing and rendering harmless such articles, simply because they might have been brought in the ordinary course of business from another state. If the express company has in possession within the State liquor, with intent to make unlawful use or disposition of it, then the right to seize it and prevent such unlawful use attaches. If it were competent for persons or companies to become superior to State laws and police regulations, and to override and defy them under the shield of the Federal Constitution simply by means of conducting an interstate traffic, it would be indeed a strange and deplorable condition of things. The rights of the States to regulate the traffic in intoxicating liquors ha^, been settled by the United States supreme court in the license cases, 5 How. 577.
IV. Proof of the former conviction in the case of State vs. O’Neil was properly admitted, notwithstanding the conviction appeared to have been more than three years before the trial. No provision of the statute requires that the former conviction must have been within three years, and we have no authority to add such a provision to the law as it is plainly and unambiguously framed by the legislature. The reason for the limitation of the prosecution for the offenses charged in these cases to a period within three years of the time of commission, as for all similar limitations, is that a person should not be called upon to answer to a legal accusation after a such long time has elapsed as would, in the estimation of the law’, make it difficult or impossible, by reason
V. The constitutional inhibition of cruel and unusual punishments, or excessive fine or bail, has no application. The punishment imposed» by statute for the offense with which the respondent O’Neil is charged cannot be said to be excessive or oppressive. If he has subjected himself to a severe penalty, it is simply because^he has committed a great-many such offenses. It would scarcely be competeut for a person to-assail the constitutionality of the statute prescribing a punishment for-burglary, on the ground that he had committed so many burglaries that, if punishment for each were inflicted upon him, he might be kept in prison for life. The mere fact that cumulative punishments-may be imposed for distinct offenses in the same prosecution is not material upon this question. If the penalty were unreasonably sev'ere fora single offense, the constitutional question might be urged, but here the unreasonableness is only in the number of offenses the respondenthas committed.
The inevitable deduction from what has been said under the first point is, that the respondent O’Neil, by what he did in respect of the transactions in question, made the express company his agent; and as what, was done by such agent in the execution of the authority and instructions directly given by him, committed offenses against the statute. O’Neil must be held responsible. That he was innocent of any purpose or intent to break the law, and was unaware that what he did was contrary to law, cannot avail him in defense. State vs. Comings,. 28 Vt. 508.
The result is that in the cases of State vs O’Neil, Nos. 27, 28, the respondent takes nothing by his exceptions; and in the cases of State vs. Intoxicating Liquor, Nos. 25, 26, the judgments are affirmed.
So ordered. — The Reporter.