TONY ROSSI, Plff. in Err., v. COMMONWEALTH OF PENNSYLVANIA.

238 U.S. 62 (35 S.Ct. 677, 59 L.Ed. 1201)

TONY ROSSI, Plff. in Err., v. COMMONWEALTH OF PENNSYLVANIA.

No. 193.

Argued: March 11, 1915.

Decided: June 1, 1915.

Mr. H. C. McClintock for plaintiff in error.

Messrs. Thomas W. Dickey and Clyde V. Ailey for defendant in error.

Argument of Counsel from page 63 intentionally omitted

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Mr. Justice Pitney delivered the opinion of the court:

Plaintiff in error was convicted in the court of quarter sessions of Lawrence county, in the state of Pennsylvania, of the crime of selling intoxicating liquors in that county without a license, contrary to § 15 of an act of May 13, 1887 (P. L. p. 113), which declares: 'Any person who shall hereafter be convicted of selling or offering for sale any vinous, spirituous, malt or brewed liquors, or any admixture thereof, without a license, shall be sentenced,' etc. The superior court affirmed the conviction (53 Pa. Super. Ct. 210), the supreme court of the state refused an appeal, and this writ of error was allowed.

The facts are these: Plaintiff in error is a liquor dealer having his place of business in the county of Mahoning, in the state of Ohio, which immediately adjoins Lawrence county, Pennsylvania. He had no license to sell in Lawrence county, nor any place of business there, but went into that county and there took an order for liquor, with the understanding that the liquor should be thereafter delivered from his stock in Ohio to the residence of the purchaser in Pennsylvania. He returned to Ohio, there loaded the goods upon his own wagon, and either by himself or his employee drove across the state line and delivered the liquor to the residents of the purchaser, pursuant to the contract. Thus the sale was negotiated in Pennsylvania, but contemplated and required for its fulfilment a transaction in interstate commerce, which afterwards took place, with resulting delivery in Pennsylvania.

The charge, as will be observed, was selling, not offering for sale. And it is admitted that by the Pennsylvania decisions the act of taking orders for future delivery is not punishable under the statute cited, or any other, and that it is not the making of an executory contract, but the executed sale, that is punishable. Com. v. Smith, 16 Pa. Co. Ct. 644, 646, 647; Star Brewing Co.'s License, 43 Pa. Super. Ct. 577, 580; Com. v. Guinzburg, 46 Pa. Super. Ct. 488, 497; and see Garbracht v. Com. 96 Pa. 449, 453. And so, in the present case, the superior court (53 Pa. Super. Ct. 220) recognized that it was not the making of the executory contract, but the execution of it, that involved a violation of the law of the state.

The Federal question presented is whether, under the act of Congress approved August 8, 1890, chap. 728 (26 Stat. at L. 313, Comp. Stat. 1913, § 8738), known as the Wilson act, the state of Pennsylvania may punish plaintiff in error for delivering in that state liquors transported in interstate commerce, under the circumstances stated. The case arose before the passage of the act of March 1, 1913, chap. 90 (37 Stat. at L. 699, Comp. Stat. 1913, § 8739), known as the Webb-Kenyon act, and the effect of this legislation is therefore not now involved.

As has been recently pointed out in Kirmeyer v. Kansas, 236 U. S. 568, 572, 59 L. ed.——, 35 Sup. Ct. Rep. 419, the transportation of intoxicating liquor, as of other merchandise, from state to state, is interstate commerce, and state legislation which penalizes it or directly interferes with it, otherwise than as permitted by an act of Congress, is in conflict with the commerce clause of the Federal Constitution; and while Congress, in the Wilson act, declared in substance that liquors transported into any state, or remaining therein for use, consumption, etc., shall, upon arrival in such state, be subject to the operation and effect of its laws enacted in the exercise of the police power, to the same extent and in the same manner as though the liquors had been produced in such state, and shall not be exempt therefrom by reason of being introduced in original packages, this does not subject liquors transported in interstate commerce to state regulation until after their arrival at destination and delivery to consignee or purchaser. Leisy v. Hardin, 135 U. S. 100, 110, 34 L. ed. 128, 132, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681; Rhodes v. Lowa, 170 U. S. 412, 423, 42 L. ed. 1088, 1095, 18 Sup. Ct. Rep. 664; American Exp. Co. v. Iowa, 196 U. S. 133, 142, 143, 49 L. ed. 417, 421, 422, 25 Sup. Ct. Rep. 182; Louisville & N. R. Co. v. F. W. Cook Brewing Co. 223 U. S. 70, 82, 56 L. ed. 355, 358, 32 Sup. Ct. Rep. 189.

The Pennsylvania superior court deemed that the present case was controlled by Delamater v. South Dakota, 205 U. S. 93, 51 L. ed. 724, 27 Sup. Ct. Rep. 447, 10 Ann. Cas. 733, where a statute imposing an annual license charge upon the business of selling or offering for sale intoxicating liquors within the state by traveling salesmen soliciting orders was held to be enforceable in view of the Wilson act, even as applied to the business of soliciting, within the borders of the state, proposals for the purchase of liquors, which were to be consummated by the delivery within the state of liquors to be brought from without. That case, however, has no present pertinency, since the prohibition of the Pennsylvania statute is not addressed to the business of soliciting contracts for the purchase of liquor, but to the sale of the liquor itself; and by the terms of the Wilson son act, as previously construed, the control of this subject by the several states is postponed until after the delivery of the liquor within the state.

Judgment reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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