Citation Numbers: 47 S.E. 808, 134 N.C. 612
Judges: CLARK, C. J.
Filed Date: 3/1/1904
Status: Precedential
Modified Date: 1/13/2023
DOUGLAS. J., dissenting. The defendant is indicted for selling spirituous liquor to one Guess in the town of Durham, where such sale is prohibited by virtue of an election had under the provisions of chapter 233, Laws 1903.
The special verdict finds that the defendant was not a druggist and had no license to sell spirituous liquor within the city of Durham; that he resided in Roxboro, where he had license to sell spirituous liquor; that Guess sent the defendant two dollars by mail with an order to ship said Guess at Durham one gallon of corn whiskey by express, charges prepaid, which the defendant did, and the whiskey was delivered to Guess in Durham; that said Guess was not a druggist, nor was said liquor sold to him upon the prescription of a regularly practicing physician.
The point presented therefore is whether this was a sale at Roxboro, where the liquor was delivered to the carrier by the defendant for transportation to Guess, or was it a sale at Durham, where it was received by Guess and where such sale was prohibited by law.
Laws 1903, ch. 349, sec. 2, provides: "That the place where delivery of any spirituous, malt, vinous, fermented or other intoxicating liquors is made in the State of North Carolina shall be construed and held to be the place of sale thereof, and any station or other place within said State to which any person, firm, company or corporation shall ship or convey any spirituous, malt, vinous, fermented or other intoxicating liquors for the purpose of delivery or carrying the same to a purchaser shall be construed to be the place of sale; provided this section shall not be construed to prevent the delivery of any spirituous, malt, vinous, fermented or other intoxicating liquors to (614) druggists in sufficient quantities for medical purposes only."
This section is explicit that the place of actual delivery to the buyer or to which it shall be shipped for delivery to him "shall be construed tobe the place of sale." It is contended that this provision does not have the effect of the plain purport of the words used by the law-making power because:
1. This section two is found in a statute entitled "An act to prohibit the manufacture, sale and importation of liquors in Cleveland, Cabarrus, Mitchell and Gaston Counties." Formerly the caption of an act was not at all considered to any extent *Page 445
whatever in construing it for reasons given in S. v. Woolard,
It is well settled, says Ruffin, C. J., in Humphries v. Baxter,
2. It is further objected that if the statute had this meaning it is unconstitutional, but we are not pointed to any section of *Page 446
the Constitution which forbids the law-making power to designate the place of sale when the goods are shipped by the vendor to the vendee by a common carrier or other agency. It is true the courts have held that the place of sale is where the goods are delivered to the carrier, the latter being the agent of the vendee, thus making the constructive delivery, instead of the place of actual receipt of the goods by the purchaser, the place of sale. This rule is of comparatively modern origin, and at first (616) was held to apply only when the vendee designated the carrier by whom the goods were to be shipped. Daviesv. Peck, 8 D. E., 330. It has not been uniformly held, and is subject to many exceptions (1 Beach Cont., sec. 563; 2 Kent Com., 499), as the right of stoppage in transitu, and other exceptions. It is merely a rule of judicial construction, which was made in the absence of legislation, and is not protected by any constitutional provision from legislative power to change it. Especially can the Legislature change such rule in the exercise of its police power over the sale of intoxicating liquors when, as here, it can be readily seen that with the multiplication of common carriers and the speed and ease with which intoxicating liquors can be shipped, it would be a vain thing to prohibit the sale of liquor in any designated territory if vendors a short distance off can at will fill orders coming from within the prohibited territory upon the judicial fiction that the sale is complete upon delivery to the carrier, who is construed as the agent of the vendee. Whether it may or may not require an act of Congress to make a similar change as to liquor shipped into prohibited territory from points outside the State in nowise affects the power of the State to so provide when the shipment is from another point in the State. Rhodes v. Iowa,
Where one upon one side of the line of a political division, as a State or county, shoots across the line and kills a person on the other side, the courts have held that the act is (617) committed where the shot is delivered by striking the body of the victim. S. v. Hall,
It was suggested on the argument, though the point is not made in the record, that the statute contravenes the
Reversed.
Randall v. . R. R. , 107 N.C. 748 ( 1890 )
Freight Discrimination Cases , 95 N.C. 434 ( 1886 )
Cook v. United States , 11 S. Ct. 268 ( 1891 )
State v. . Wallace , 94 N.C. 827 ( 1886 )
State v. . Woolard , 119 N.C. 779 ( 1896 )
Randall v. . R. R. , 104 N.C. 410 ( 1889 )
Jolly v. United States , 18 S. Ct. 624 ( 1898 )
O'Neil v. Vermont , 12 S. Ct. 693 ( 1892 )
Norfolk & Western R. Co. v. Sims , 24 S. Ct. 151 ( 1903 )
State v. Tickle , 238 N.C. 206 ( 1953 )
State v. . Bailey , 168 N.C. 168 ( 1914 )
Stone v. . R. R. , 144 N.C. 220 ( 1907 )
State v. . Williams , 146 N.C. 618 ( 1908 )
In Re Briggs , 135 N.C. 118 ( 1904 )
Ellis v. . Greene , 191 N.C. 761 ( 1926 )
Gaskins v. . R. R. , 151 N.C. 18 ( 1909 )
Carlyle v. . Highway Commission , 193 N.C. 36 ( 1927 )