# Hart v. State > Mississippi Supreme Court · November 15, 1905 · 87 Miss. 171 URL: https://www.frixlaw.com/law-library/cases/7989430 ## Case - **Full name:** William Hart v. State of Mississippi - **Court:** Mississippi Supreme Court - **Decided:** November 15, 1905 - **Citations:** 87 Miss. 171; 39 So. 523 - **Precedential status:** Published - **Opinion:** Opinion of the court by Truly - **Judges:** Truly - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7989430 ## Opinion text Truly, that extent decreases their importation, and therefore, indirectly, at least, it impedes free interstate commerce. The same argument is equally applicable and more forceful when applied to absolute prohibitory laws, yet *179 we have already seen that such are uniformly upheld. “It may be that the effect of the law is to prevent the importation of liquors from other states, but the • distinction between state restrictions upon the importation, and state restrictions upon the sale of a commodity when within the state, is clearly recognized and well defined.” Lang v. Lynch (C. C.), 38 Fed. Rep., 489 (4 L. R. A., 831); License Cases, 5 How., 504 (12 L. ed., 256); State v. Delamator (S. D.), 104 N. W., 537 ; Mugler v. Kansas, 123 U. S., 623 . (8 Sup. Ct., 273; 31 L. ed., 205). The suggestion, even if well founded, that under a certain hypothetical state of facts the enforcement of the statute under consideration would operate as a regulation of interstate commerce, affords no ground on which to base an attack upon the validity of the law as an expression of legislative will. Vance v. Vandercook, 170 U. S., 439 (18 Sup. Ct., 674; 42 L. ed., 1100); Tiernan v. Rinker, 102 U. S., 123 (26 L. ed., 103); In re Rahrer, 140 U. S., 545 (11 Sup. Ct., 865; 35 L. ed., 572). The inquiry whether in the instant case the appellant has or has not, under the facts of the record, violated the law, sheds no light on the other question as to the constitutionality of the law itself. The statute must be construed as written, and, so construing it, we uphold it as not infringing upon any of the provisions of the fundamental law, either state or national. The authorities relied upon by appellant on this point all fall within the category of cases dealt with by this court in Overton v. Vicksburg, 70 Miss., 558 ( 13 South. Rep., 226 )—cases in which the commodity dealt with was not only a legitimate subject of interstate commerce, but one the sale of which was permitted by the law of the state. In such cases this court, following the decision of the supreme court of the United States —Robbins v. Shelby County, 120 U. S., 489 (7 Sup. Ct., 592; 30 L. ed., 694)—of the federal question involved, held that the imposition of a privilege tax was invalid, because it operated as a regulation of interstate commerce, and hence was within the inhibition of the federal constitution. *180 Brit there are two reasons why those authorities are not controlling in the case at bar — first, because this statute is not an attempt to require any license or payment of privilege tax as a condition precedent to following a certain lawful occupation or calling. It does not attach any conditions, limitations, burdens, or restrictions upon the doing of a lawful act, but undertakes to prevent the doing of an unlawful one. Second, because the article or commodity dealt with, while a recognized subject of interstate commerce, so that its importation cannot lawfully be prevented — constrained to follow doubtingly the authoritative utterance of the majority of the court in Bowman v. R. R. Co., 125 U. S., 465 (8 Sup. Ct., 689, 1062; 31 L. ed., 700), and Leisy v. Hardin, 135 U. S., 100 (10 Sup. Ct., 681; 34 L. ed., 128)—is an article the sale of which, after importation, may be legally forbidden. Since the enactment by congress of the act of August 8, 1890, commonly called the “Wilson act,” intoxicating liquor imported into a state becomes, immediately upon arrival, subject to the law of such state, so that the sale there, if forbidden by the law of such state, is unlawful, though made by the importer and in the original package. Judson, Inter. Com., 18. “Congress has now spoken, and declared that imported liquors or liquids shall, upon arrival in a state, fall within the category of domestic articles of a similar nature.” In re Bahrer, supra- “Congress did not use terms of permission to the state to act, but simply removed an impediment to the enforcement of the state laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the state not then possessed, but-allowed imported property to fall at once upon arrival within the local jurisdiction.” Id. “It has been settled that the effect of the act of congress is to allow the statutes of the several states to operate upon packages of -imported liquor before sale.” Rhodes v. Iowa, 170 U. S., 419 (18 Sup. Ct., 664; 42 L. ed., 1088). Hence, all sales of intoxicating liquors are governed by *181 the state law. If in the particular place the sale be permitted, the seller must comply with the requirements of the law; if forbidden, the sale is unlawful, no matter by whom made, under what circumstances, or whether the liquor be imported or domestic. The only question remaining for consideration is whether, under the facts of the case, appellant is guilty of the offense charged. Did he, acting as agent in a place where all such sales were prohibited, assist in effecting sale of whisky ? There are no controverted facts. The proof is this: Appellant is a citizen of Louisiana, and, either as partner or employe, conducts a retail whisky business in that state. In the prosecution of his business he visits frequently the city of Brookhaven, in this state,, in which, being in Lincoln county, the sale of intoxicating liquors is prohibited by law. He solicits and takes orders for whisky, which is delivered in Louisiana to an express company for transportation and delivery to the q>urehaser. Appellant agrees with the purchaser as to quantity, quality, and price of whisky ordered, and collects the purchase price thereof in money before the whisky is delivered, and even before the order is forwarded. It will be poted that the entire transaction is closed in this state and at the time of the receipt of the order, save only the actual delivery of the whisky. Undoubtedly this is acting as ag’ent of the seller in effecting a sale. Without his active ‘intervention no sale could be consummated. He acts without any submission of orders for approval, but conducts all negotiations, collects the purchase price, and directs the delivery. It is idle to quibble over where the delivery in a strict legal sense occurred, whether in this state or Louisiana. The question of appellant’s guilt under this statute is not affected by that point. He is not indicted for making a sale, but for acting as agent of the seller and assisting in effecting a sale. See, as shedding light on this branch of the subject, State v. Cullins, 53 Kan.,105 ( 36 Pac. Rep., 56 ; 2d L. R. A., 212); State v. *182 Ascher (Conn.), 7 Atl., 822 ; State v. Delamator, supra; Starace v. Rossi, 69 Vt., 303 ( 37 Atl., 1109 ); Backman v. Wright, 27 Vt., 187 ; Westheimer v. Weisman (Kan. Sup.), 57 Pac. Rep., 969 ; Taylor v. Pickett, 52 Iowa, 467 ( 3 N. W., 514 ). A sale of intoxicating liquor was made. Appellant assisted in effecting that sale, and acted as agent of the seller in this state at a place “in which the sale of such liquor is prohibited by law.” This constitutes the specific offense dealt with by this particular statute, and every element of appellant’s guilt is plainly shown. The argument made in behalf of appellant, that his conviction cannot be upheld, because the sale was incomplete until delivery and that delivery was made beyond the borders of the state,- was, under slightly different circumstances, successfully interposed in Pearson v. State, 66 Miss., 512 ( 6 South. Rep., 243 ; 4 L. R. A., 835), decided in April, 1889. But as a remedy for this evil, and to supply the omission in the law thus called to its attention, the legislature in February, 1890,.passed Laws 1890, ch. 62, p. 71, which now constitutes Code 1892, § 1604, thus closing effectually this avenue of escape. Affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7989430. Public record. Not legal advice.