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In our opinion, the provision of the contract in this case, as so modified that the optionees (said Starcher Bros.) "may have this option and agreement extended upon the payment of said sum annually as aforesaid," and which provision of the contract is made to extend and apply to the heirs, assigns, executors, and administrators of both parties thereto, gives to the optionees a présent right to an interest in the land which may arise at a period beyond the legal limit, so as to bring it within the rule against perpetuities, and that the contract is therefore void and unenforceable. This case is in other respects controlled by the same principles announced in the case of Starcher Bros. v. Jeff Duty and Others, above referred to.

We therefore affirm the judgment of the court below, with costs to the appellees.

(61 W. Va. 329)

STATE v. SMITH.

(Supreme Court of Appeals of West Virginia. Feb. 19, 1907.)

1. INTOXICATING LIQUORS ILLEGAL SALEC. O. D. SHIPMENT EVIDENCE.

Under an indictment for selling spirituous liquors, the state resting her case on evidence that defendant, as a railroad agent, delivered a box of liquors_transported from Cincinnati consigned C. O. D. to a person who had not ordered the liquors, in violation of chapter 40, § 1, p. 130, Acts 1903 [Code 1906, § 954], the defendant has a right to introduce evidence for the purpose of showing that he made inquiry to learn whether the consignee had ordered the liquors to be sent him for his personal use, and acted bona fide in making such delivery. 2. INTERSTATE

LAW.

COMMERCE-CONSTITUTIONAL

Question. Is that clause of page 130, c. 40, 1. Acts 1903 [Code 1906, 954], prohibiting railroad agents from delivering liquors to consignees not ordering the same, contrary to the commerce clause of the federal Constitution? Poffenbarger, J., dissenting in part. (Syllabus by the Court.)

Error from Circuit Court, Barbour County. Charles Smith was convicted of an illegal sale of liquor, and brings error. Reversed and remanded.

Wm. T. George and Fred O. Blue, for plaintiff in error. C. W. May, Atty. Gen., for the State.

BRANNON, J. Charles Smith was indicted and fined in Barbour county; the indictment charging that he did unlawfully sell spirituous liquors without license. The state's evidence in support of the prosecution was that Smith, as agent of the Baltimore & Ohio Railroad Company, delivered to Arthur M. Blake boxes marked "Glass" proven to contain whisky, shipped by a liquor dealer in Cincinnati, consigned C. O. D. to Blake, and received payment from Blake for the articles; and that Blake had not ordered the liquor to be sent to him. The statute on which the state would ask conviction chapter 40, § 1, p. 130, Acts 1903 [Code 1906, § 954], reading as follows: "That any agent

is

or employé of any person, firm, or corporation, carrying on the business of a common carrier, or any other person, who, without a state license for dealing in intoxicating liquors, shall engage in the traffic or sale of such liquors, or be interested for profit in the sale thereof, or act as the agent or employé or consignor or consignee of the same, or who shall solicit or receive any order for the sale of any intoxicating liquors, or deliver to any person, firm, or corporation, any package containing such intoxicating liquors, shipped 'collect on de livery' or otherwise, except to a person having a state license to sell the same, or to the bona fide consignee thereof who has in good faith ordered the same for his personal use, shall be deemed to have made a sale thereof contrary to law, and guilty of a misdemeanor." On the trial, in connection with his own evidence that he believed that Blake had ordered the goods from Cincinnati, and had no reason to believe to the contrary, the defendant, as well as the state, proved that when Blake called for the liquor, after being informed by letter from Cincinnati that the consigned article was at the railroad office, before Smith, would deliver him the article he required Blake to sign, and he did sign, a receipt reading as follows:

"United States Express Company.

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The court refused to admit the receipt in evidence.

Was the receipt admissible? This depends on the question whether inquiry by the jury was proper as to Smith's knowledge or ig norance of the fact that the liquor had not been ordered by Blake to be sent to him from Cincinnati. The statute does not in words require that for conviction the act of delivery shall be with knowledge that the consignee had not ordered the liquor. It may be said simply to prohibit the act. We find in 12 Cyc. 148, the following: "As a general rule where an act is prohibited and made punishable by statute, the statute is to be construed in the light of the common law, and the existence of a criminal intent is essential. The Legislature, however, may for bid the doing of an act, and make its commission criminal without regard to the intent of the doer, and if such an intention appears, the courts must give it effect, although the intention may have been innocent. Whether or not in a given case a statute is to be so construed is to be determined by the court by considering the subject-matter of the prohibition as well as the language of

the statute, and thus ascertaining the intention of the Legislature." It will there appear that the authorities are many each way. I think the principles stated in Bishop's Statutory Crimes, § 1022, are pertinent. "Under these statutes the question of the effect of a mistake of fact, discussed or adverted to in several other connections, has often arisen. It is not proposed to repeat the former discussions. They are referred to in a note, and the reader is requested to examine them. The result, derivable both from the places referred to, and from the decisions under the present head, is that one whom the law permits to sell intoxicating liquor, and whose purpose and endeavor it is to conform to the law in all things, and to do no wrong of any sort, is legally, the same as he is morally, justified in acting, like other people in respect of other things, on what upon careful investigation and inquiry appear to be the facts; so that, if believing the appearances he does what would be legally and morally right were the real facts so, he is not punishable though he was deceived, and they were different. Thus, if one authorized to sell liquor to adults and forbidden to sell it to minors is, without his fault or carelessness, led to believe an applicant to be an adult, while truly he is a minor, he is not punishable though he makes the sale; a proposition which some deny. And the same doctrine applies under the statutes permitting sales generally, but not to habitual drunkards. It applies likewise to the question of the intoxicating quality of the liquors sold; but there are cases in denial of this. Where the statute is silent as to the defendant's intent or knowledge, the Indictment need not allege or the government's evidence show that he knew the fact. His being misled concerning it is matter for him to set up in defense and prove. Quite different are the law and procedure where the statute has the word 'knowingly' or the like; knowledge is then an element in the crime, the indictment must allege it, and the evidence against the defendant affirmatively establish its existence." It is beyond question that our own cases say that where a statute simply prohibits the sale of liquor in certain cases, as to minors, without some word like "knowingly" or other expression, the doing of the act fixes the offense, no matter about the knowledge or ignorance or intent of the accused. It need not be alleged in the indictment that the party knew the purchaser to be a minor, or intoxicated, or in the habit of becoming so. State v. Baer, 37 W. Va. 1, 16 S. E. 368; State v. Farr, 34 W. Va. 84, 11 S. E. 737; State v. Cain, 9 W. Va. 559. Nor can it be relied on in defense. Those cases rest on statutes making the mere act an offense. But I draw a line of difference between those cases and this. The statute we are construing allows the delivery of a liquor consignment by the agent to one "who is a bona fide

56 S.E.-34

consignee thereof, who has in good faith ordered the same for his personal use." Thus, the statute introduces into the case the question whether the person is one who has in good faith ordered the liquor for his personal use. It does not so qualify other clauses, evincing design to make a difference as to the act of delivery. This surely allows the agent to make inquiry touching this matter. Can he not take precaution as to this to protect himself; to know whether he ought to deliver the article? Does the statute mean that the agent must infallibly, in every instance, guaranty that the consignee is one who in good faith has ordered the liquor for his personal use? Does it mean that when the agent has taken care to make such reasonable investigation as to that as a prudent person would adopt, but it turns out that the consignee did not order the liquor, the agent is nevertheless guilty? I think not. I think that he can show in his defense that he instituted prudent investigation to learn the truth. Therefore, we conclude that the receipt, a part of the res gestæ, containing Blake's direct statement that he had ordered the box for his own personal use, should have gone to the jury, as tending to show that Smith acted in good faith and believed that Blake was a bona fide consignee, to enable the jury to say whether, under all the circumstances, Smith acted honestly and in good faith. If such agent delivers a box or package containing liquor, but not disclosing the character of its contents, does the statute mean that he is guilty, though he may not have known the contents? Must the agent investigate every box? How? He cannot break the box. If he makes fair investigation, and has reasonable ground to believe the box does not contain liquor, is he nevertheless guilty? Is that the real meaning of the statute? This doctrine may, in many cases, defeat the design of the statute; still, we must not give the act a construction to promote injustice, and inflict punishment on the innocent agent.

The question of the validity of this act under the interstate commerce clause of the Constitution of the Union is raised. The act does not forbid the consignment of liquor to licensed dealers, or to consignees under real purchase. It does not forbid bona fide interstate commerce. Its object, so far as the point of this case goes, would seem to be to forbid a liquor dealer sending liquor to a person who had made no purchase, no previous order, the policy of the state being to prevent persons electioneering for purchasers, tempting persons to drink, tempting persons to buy who before had not though of buying and thus spread the evil of drunkenness more extensively and debauch the people more than legitimate traffic would do. Can the statute, under its police power, thus adopt and execute a policy? May the state prevent acts in fraud of its laws? We do not answer this question, because we find that the judg

ment must be reversed on other grounds, and the question may never arise. In Edgell v. Conaway, 24 W. Va. 747, it is held that: "A court will not pass on the constitutionality of a statute, unless a decision on that very point is necessary to the determination of the case."

Our conclusion is to reverse the judgment, set aside the verdict, and remand to case for a new trial.

POFFENBARGER, J. (dissenting as to construction of statute, but concurring in reversal of judgment, and granting of new trial).

On the 10th, 14th, and 18th days of November, 1905, M. E. Stone, a dealer in spirituous liquors at Cincinnati, Ohio, shipped from said city by the United States Express Company, under a C. O. D. consignment, three several packages of whisky to Arthur Blake, at a place on the Baltimore & Ohio Railroad, in Barbour county, this state, called Arden. Blake had given no order for any of the packages. Stone shipped them as aforesaid and, at or about the dates of shipments, notified Blake that the packages were, or would be, at the express office at Arden, consigned to him and would be delivered to him on payment of the C. O. D. charges. Willing to accept the liquor and pay for it, though not ordered, Blake did so, and deliveries thereof were made by the express company through its agent, Charley Smith. who did not know the liquor had not been ordered. Before delivering the packages, he had Blake sign receipts therefor, containing the statement that he had ordered it. Afterwards, Smith was indicted for violation of section 1 of chapter 40, page 130, of the acts of 1903 [Code 1906, § 954], and convicted and fined $50, and he has brought the Judgment here for review on a writ of error.

The statute aforesaid reads as follows: "That any agent or employé of any person, drm or corporation, carrying on business of a common carrier, or any other person, who, without a state license for dealing in inoxicating liquors, shall engage in the traffic or sale of such liquors, or be interested for profit in the sale thereof, or act as the agent or employé or consignor or consignee of the same, or who shall solicit or receive any order for the sale of any intoxicating liquors, or deiver to any person, firm or corporation, any package containing such intoxicating liquors, shipped 'Collect on Delivery' or otherwise, except to a person having a state license to sell the same, or to the bona fide consignee thereof who has in good faith ordered the same for his personal use, shall be deemed to have made a sale thereof contrary to law, and guilty of a misdemeanor; and, upon conviction thereof, shall be fined not less than ten, nor more than one hundred dollars, and may, at the discretion of the court, be imprisoned in the county jail not exceeding six months." As it appears from

the facts detailed in the evidence that the consignee had not in fact ordered the liquor, the delivery was made in plain violation of the letter of that portion of the statute which inhibits a delivery except to a bona fide consignee who has in good faith ordered the liquor for his personal use, unless, by some process of construction, we may be able to say that, within the meaning of the law, the goods had been ordered. No principle is perceived upon which this conclusion can be reached. It is expressly stated by the consignee that he had not ordered the packages and did not know of their shipment, until he received letters, telling him they were at the express office for him or would be there. The letter and consignment could have constituted nothing more than an offer to sell which Blake had not accepted. Though, on receipt of the letter, he may have mentally assented to the proposition of sale, he did not in any way signify his intention to accept, until he appeared at the office of the express company and paid the charges and accepted the packages. The making of a contract involves the acceptance of the offer as well as the offer itself and the acceptance must be evidenced by some act on the part of the person to whom the offer is made. In this instance, the person to whom it was made said nothing and did nothing, respecting it, until he appeared at the office of the express company and obtained the packages. Legal principles, authority and reason unite in saying the contract of sale was made at Arden, W. Va., in each instance, and not at Cincinnati, Ohio. Moreover, it must be apparent that the consignee did not at any time order the shipment. It was made without his knowledge or consent. Though he did afterwards accept, the shipment was not in any sense his act, was not made by his authority, nor on his behalf, and his acceptance of the liquors cannot be regarded as a ratification of any previous transaction purporting to have been done by his direction or authority.

If the statute is valid, and is applicable to such transactions, the guilt of the defendant is beyond question. But invalidity of the statute is urged on the ground that the enforcement thereof according to its letter, gives it extraterritorial operation and effect, and works a restraint upon interstate commerce, in violation of the commerce clause of the federal Constitution. Whether it restrains interstate commerce, and, in the sense of restraining it, regulates the same, is the only important question presented. Its solution requires a review and consideration of those federal decisions which determine the character and status of intoxicating liquors as commercial articles, define interstate commerce, mark the limits of the police power of the states, and indicate the extent to which Congress has removed restrictions upon the exercise of state control and regulation of intoxicating liquors, by denying to them the

character of commercial articles. It has been definitely settled for a long time by the decisions of the federal Supreme Court that intoxicating liquor is a legitimate commercial article, having the same status in interstate commerce as other trade commodities, such as wheat, corn, flour, live stock and manufactured articles, except in so far as a certain act of Congress, known as the "Wilson Act," passed on the 8th day of August, 1890, c. 728, 28 Stat. 313 [U. S. Comp. St. 1901, p. 3177], has deprived them of that character. In the License Cases, 5 How. 504, 577, 12 L. Ed. 256, decided in 1847, Chief Justice Taney said, after referring to other things having a different status in law: "But spirits and distilled liquors are unlversally admitted to be subjects of ownership and property, and are therefore subjects of exchange, barter, and traffic, like any other commodity in which a right of property exists." In the same case, Mr. Justice Catron says: "That ardent spirits have been for ages, and now are, subjects of sale and of lawful commerce, and that of a large class, throughout a great portion of the civilized world, is not open to controversy; so our commercial treaties with foreign powers declare them to be, and so the dealing in them among the states of this Union recognizes them to be." The character thus given to spirituous liquors, in the absence of legislation divesting them of it, has ever since been maintained. Crutcher v. Kentucky, 141 U. S. 60, 11 Sup. Ct. 851, 35 L. Ed. 649; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; State v. Lichtenstein, 44 W. Va. 99, 28 S. E. 753.

Because it is a legitimate subject of commerce, the state cannot affect it by legislation in the exercise of its police power as it can some other things. This distinction was observed in the License Cases, cited. At page 576, of 5 How. (12 L. Ed. 256), Chief Justice Taney said: "It has, indeed, been suggested that if a state deems the traffic in ardent spirits to be injurious to its citizens, and calculated to introduce immorality, vice, and pauperism into the state, it may constitutionally refuse to permit its importation, notwithstanding the laws of Congress; and that a state may do this upon the same principles that it may resist and prevent the introduction of disease, pestilence, or pauperism from abroad. But it must be remembered that disease, pestilence, and pauperism are not subjects of commerce, although sometimes among its attendant evils. They are not things to be regulated and trafficked in, but to be prevented, as far as human foresight or human means can guard against them." It has been rigidly maintained ever since by the federal Supreme Court and the courts of the several states. Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223, where it is declared that "the states may legislate to prevent the spread of crime, and may exclude from their

limits paupers, convicts, persons likely to become a public charge, and persons afflicted with contagious or infectious diseases." The decision itself sustains a state statute, prohibiting the sale of oleomargarine, so colored as to cause it to look like yellow butter. It placed no restraint upon dealings in oleomargarine not so colored and sold or offered for sale for what it really was. The act was sustained on the ground that the state has power to prevent fraud and deception in which no man can have any right of property. The real subject-matter of the act, the fraud, was not in any sense an article of commerce, and under its police power the state could exclude it by legislation, as if it were disease or pestilence. The decision in Missouri (Kansas & Texas Ry. v. Haber, 169 U. S. 613, 18 Sup. Ct. 488, 42 L. Ed. 878), sustaining a Kansas statute, imposing liability upon a railroad company for damages, resulting from its carrying into the state cattle capable of communicating Texas, splenic or Spanish fever, a disease peculiar to southern range cattle. Another statute, having the same ostensible purpose, but so broad in its terms and effect as to impose liability for importing sound and healthy cattle, and so interfere with interstate commerce, had been declared unconstitutional for that reason in Railroad Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527.

Having recognized the commercial character of spirituous liquors, which places them under the protection of national law, and beyond the police power of the states, as long as they remain in the channels of interstate commerce, the federal Supreme Court proceeded to ascertain the point at which imported liquors cease to be articles of interstate or foreign commerce and become a part of the common mass of the property of the state into which they have been carried; and it was settled at an early date that they were not divested of their commercial character so long as they remained unsold in the hands of the importer in the packages in which they had been shipped. In License Cases, 5 How. 504, at page 575, 12 L. Ed. 256, Chief Justice Taney said: "Indeed, goods imported, while they remain in the hands of the importer, in the form and shape in which they were brought into the country, can in no just sense be regarded as a part of that mass of property in the state usually taxed for the support of the state government. The immense amount of foreign products used and consumed in this country are imported, landed, and offered for sale in a few commercial cities, and a very small portion of them are intended or expected to be used in the state in which they are imported. A great (perhaps the greater) part imported, in some of the cities, is not owned or brought in by the citizens of the state, but by citizens of other states, or foreigners. And while they are in the hands of the importer for sale, in the form and shape in which they

were introduced, and in which they are in tended to be sold, they may be regarded as merely in transitu, and on their way to the distant cities, villages, and country for which they are destined, and where they are expected to be used and consumed, and for the supply of which they were in truth imported." In this he simply reiterated what had been said by Chief Justice Marshall in Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678, decided 20 years earlier. See pages 441, 442 of 12 Wheat. Pierce v. New Hampshire, one of the License Cases, although recognizing the original package doctrine, sustained the assertion of state power over a cask of imported gin, while yet in the hands of the importer in the same condition in which it had been shipped into the state, because Congress had not then passed any law regulating commerce among the states. It was assumed there that the constitutional grant of power to Congress to regulate commerce among the states was not in effect a declaration of freedom of such commerce and, therefore, a denial to the states of power to regulate or control it. In this respect, the deci sion has since been overruled. Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, affirming the right of the importer to sell liquor in original packages, notwithstanding state laws to the contrary and declaring such laws void. It had been virtually so held in the previous case of Bowman v. Railway Co., 125 U. S. 465, 8 Sup. Ct. 689, 31 L. Ed. 700. The doctrine of the License Cases, 5 How. 504, 12 L. Ed. 256, admitting power in the state to prohibit the sale in original packages of liquors imported from one state into another, prevailed from 1847 until 1889, when it was overthrown in Leisy v. Hardin. During that period of 41 years, the power of the states to prevent sales of liquors in the original packages carried into one state from another, was admitted and effective, because Congress had not passed any law authorizing or regulating interstate trattic in such articles. From this proposition Mr. Justice Catron had dissented in the License Cases, and it remained a subject of diversity of opinion among the justices of the Supreme Court until, as stated, the views of Mr. Justice Catron finally prevailed in Leisy v. Hardin. In that case it was ascertained upon a review of previous decisions, including Bowman v. Railway Co., that the legislative power of the states, being supreme as to all subjects falling strictly within their police power, state statutes regulating such subjects and operative within the territorial limits of the states were enforceable, though incidental interference with interstate commerce might result from the enforcement thereof; that, by constitutional reservation, the states have the right to enact and enforce inspection laws, applicable to legitimate articles of commerce (article 1, 10, cl. 2, Const.); that where the subjects upon which Congress can act under its commercial power

are local in their nature or sphere of operation, such as harbor pilotage, improvement of harbors, establishment of beacons and buoys to guide vessels in and out of port, construction of bridges over navigable rivers, erection of wharves, piers and docks, and the like, which can be properly regulated only by special provisions adapted to their localities, the states can act until Congress interferes and supersedes their authority; that, where the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the states, such as transportation between the states, including the importation of goods from one state into another, Congress alone can act upon it and provide the needed regulations; and that, in cases in which the subject is susceptible of government or regulation by a uniform rule, the absence of any law of Congress respecting it is equivalent to a declaration by Congress that commerce in it shall be free and unhampered. Having enunciated these principles as settled law, and found that the nature of spirituous liquors as articles of commerce among the states is such as to enable Congress to regulate such commerce in them by a uniform rule, Pierce v. New Hampshire, one of the License Cases, was overruled, and the power of the states to prohibit sales of liquors in original packages, imported from one state into another, denied.

For the purpose of restoring, conferring or unobstructing the power thus denied to the states, Congress, on the 8th day of August, 1890, passed, what is known as the "Wilson Act," providing "That all fermented, distilled or other intoxicating liquors or liquids transported into any state or territory, or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police pow. ers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise." The validity of this act was called in question, on constitutional grounds, in the case of Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572, but the court sustained the act. Rahrer had placed himself directly within its terms, wherefore there was no occasion to construe it or define with exactness the limits of state power under it. In subsequent cases, however, it has been construed. In Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088, it was determined and declared that the statutes of a state, prohibiting the sale of imported liquors in original packages, or otherwise affecting them, cannot apply while the merchandise is in transit under shipment, nor until after its arrival at the point of destination and delivery there to the consignee. Some of the justices were of opinion that such merchan

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