Golden & Co. v. Justice's Court

This is a petition for a writ of prohibition to restrain the above named respondents from “taking any further proceedings pending in the case of the People of the State of California, Plaintiff, v. Golden & Company, a corporation, in said justice’s court, and from hearing, determining, passing upon, trying or deciding any proceeding in said case,” etc. etc.

This proceeding arises by reason of the filing of a complaint, on the twenty-first day of June, 1913, in the respondent court, by the district attorney of Yolo County, charging the petitioner with the violation of section 15 -of the Local Option Law, popularly known as the “W filie law,” and passed by the legislature of 1911. (Stats. 1911, p. 599, et seq.) The" specific charge against the petitioner is that it solicited the sale of certain alcoholic liquors within the limits of the city of Woodland, a municipal corporation, it being admitted by the petitioner, for the purposes of this case, that, prior to the time at which the petitioner is alleged to have committed the offense with which it is charged in the complaint objected to here, at an election, held in said city, in pursuance of the provisions of said local option law, the electors voted in .favor of the application of the provisions of said law to the territory embraced within the corporate limits of said city and thus de

From the petition in this proceeding it appears that the petitioner “is and was at all the times herein mentioned a corporation duly organized and existing under and by virtue of the laws of the state of California; that its principal place of business is in the city and county of San Francisco, in said state of California, and is and at all times herein mentioned was lawfully engaged in the business of selling, furnishing and distributing alcoholic liquors.” It is further alleged that said petitioner was not at any of the times mentioned in the complaint filed against it “a person, company, association or club being or existing within the limits of the county of Yolo”; that it has no place of business within the limits of the said county of Yolo, but, “as said complaint shows upon its face, has its principal place of business in the city and county of San Francisco,” etc.; that, “as appears upon the face of the said,complaint the said alleged violation of the said act consisted solely of the mailing of certain letters, price lists, and an order sheet at the city of San Francisco, . . . addressed to a resident of the city of Woodland, in said county of Yolo, the said circular letter, price lists and order sheet constituting an advertisement of certain alcoholic liquors offered for sale by your petitioner; that it appears upon the face of the said complaint that all and singular the acts constituting the alleged offense as aforesaid were committed wholly in the city and county of San Francisco, . . . and wholly without the said city of Woodland and the said county of Yolo.” The petition then alleges that it does not appear upon or from the face of the complaint that the offense, purporting to be therein and thereby charged against the petitioner, or that any offense whatever, was committed within the limits of the county of Yolo or within the jurisdiction of the said court of Woodland township; “that the said court of Woodland township has no jurisdiction of your petitioner or of the attempted criminal proceeding.”

The complaint filed in the respondent court against the petitioner and to restrain proceedings under which this proceeding is instituted is made a part of the petition and attached thereto.

“Golden & Company. Not good after 30 days.”

Accompanying said letter were the price lists of the various brands of whiskies and wines -and “miscellaneous liquors” handled and sold by the petitioner and an order sheet, in blank, to be used by the party to whom the letter .was addressed, if he elected to purchase any of the liquors referred bo in the letter and the price lists.

Manifestly, the ultimate question presented here, as is stated in the petition as well as is necessarily implied from the nature of this proceeding, is one of jurisdiction. That the respondents, as a magistrate’s court and the presiding magistrate thereof, are wholly without legal authority or jurisdiction to examine the charge set forth in the complaint assailed by this proceeding, is sought to be sustained upon the following grounds: 1. That, within the meaning of the language of the Local Option Law, there can be no solicitation of orders for the sale of alcoholic liquors within no-license territory unless the sale and delivery of such liquors are made or intended to be made within such no-license territory;'2. That section 15 of said act contemplates and intends that the solicitation interdicted thereby must be prosecuted in person within such territory by the persons or corporations, etc., mentioned in said section; or, in other words, that the solicitation contemplated by the section cannot be effectuated except it be done in person by such persons or corporations themselves or their agents, which proposition implies, of course, that they or their agents must be physically present within such territory when such solicitation takes place.

• In addition to the points above specified, it is urged by Messrs. Golden and Pritchard, in a brief filed by them as amici curiae, that section 15 of said act. contravenes certain constitutional guaranties.

Section 15 of the Local Option Law reads as follows: “It shall be unlawful for any person, company, association or club, within no-license territory, to solicit' orders, take orders or ' make agreements for the sale or delivery of alcoholic liquors; provided, that this shall not apply to the taking of such orders

Section 16 provides: Nothing in this act shall be interpreted as rendering it unlawful to keep a'eoholic liquors for distribution, or to sell or distribute such liquors, in no-license territory in the manner following: 1. The serving of such liquors by any person at his own home ti> members of his family or to his guests, as an act of hospital) _y, when no money or thing of value is received in return therefor, and when said home is not a place of public resort; 2. The serving or dispensing of such liquors by a registered pharmacist for bona fide medical purposes, upon certain specified conditions, among which is that such liquors so dispensed stall not be drunk upon the premises where dispensed; 3. The felling of alcohol by a registered pharmacist for other than beverage purposes, upon certain designated conditions; 4 and >. The selling of wine by a regularly licensed pharmacist for aeramental purposes only, on certain conditions, and the di .tributing of wine, at the sacramental service of any religious organization; 6. “The keeping of alcoholic liquors at cellars, vaults or warehouses, receiving orders at such cellars, et<., for said liquors, and the shipping of the same therefrom; provided, said liquors are not distributed or delivered to any person or place in no-license territory within the county in which such cellars, etc., are located, except when delivered to a common carrier for shipment to a place outside of i:- '-license territory; 7. The keeping of alcoholic liquors on the premises where manufactured, receiving orders at said premises for such liquors, and the shipping of the same from such premises; provided, said liquors are not distributed or deliv red in no-license territory within the county in which such premises are located in quantities of less than two gallons, and are not delivered to any person, or place in such territory within said county except as follows: (a) to a common carrier for shipment to a place outside of said no-license territory; (b) to other manufacturers of alcoholic liquors at the premises where they manufacture such liquors; (c) to cell rrs, vaults or warehouses where such liquors áre stored or dis' ributed as provided in the sixth paragraph of this section; (:!) to any person at his or

It will be observed that section 15 exempts from its operation, to the extent of talcing orders for alcoholic liquors, registered pharmacists and. those places where such liquors are stored or manufactured, as provided by paragraphs 6 and 7 of section 16. There is no exception made as to the soliciting of orders, unless it may be said (and perhaps it may reasonably be so held) that such authority is necessarily implied from the provision that such orders may be taken from registered pharmacists. The provision authorizing the taking of orders on the premises where alcoholic liquors are stored or manufactured undoubtedly has reference to sales by the manufacturers of intoxicants, and does not, therefore, authorize the soliciting or taking of orders for such liquors from, them,, to be delivered to them. It is quite clear, then, that, except possibly as to registered pharmacists, regularly licensed to engage in the prosecution of their business in no-license territory, no one has a legal right to solicit or take orders for intoxicants from persons within such territory.

Now, as above indicated, the first point urged by the petitioner is that the provisions of the Local Option Law do not and were not intended by the legislature to prohibit the solicitation within no-license territory of orders for the sale or delivery of alcoholic liquors, unless the liquors to which such solicitation relates are to be delivered within such territory. Indeed, the contention goes so far as to involve the maintenance of the proposition that, while the legislative department of the government may, in the exercise of the police power, prohibit the solicitation or the making of agreements for the sale of intoxicating liquors within no-license territory where such liquors are to be delivered therein, legislation inhibitory of such solicitation or the making of such contracts within no-license territory, where the liquors are to be delivered outside the limits of such territory, would be invalid as in restraint of trade or in contravention of the right of contract.

In the case of Ex parte Anixter, 22 Cal. App. 117 , [ 134 Pac. 193 ], the petitioner sought to be relieved, through the writ of habeas corpus, of the effect of a judgment of imprisonment imposed upon him by the recorder’s court of the town of Winters upon a conviction of the crime of soliciting orders

From the foregoing authorities and many others which might be mentioned, I concluded that, if it be within the power of the states to prohibit the soliciting of orders for the sale of intoxicating liquors within their territorial limits, regardless of where such liquors were to be consigned or delivered, it was equally within their right in the exercise of the supreme control which it must be conceded that they possess over the subject of intoxicating liquors, to delegate like power to the municipalities within their borders (Const., art. XI, sec. 11), or to other of their political subdivisions, whose electors may themselves, by virtue of legally exercisable authority, invoke the application, within their respective jurisdictions, of the provisions of a general law, which determines the extent and conditions to and upon which such liquors may be used. (Stats. 1911, p. 599.)

The foregoing observations, let it be understood, are not here made for the purpose of overthrowing the position of the petitioner in this proceeding upon the question to which they relate or of confuting the argument advanced in support of said position; but they are merely ventured as explanatory of the reasons which led to what now appears from a recent decision of our supreme court, to have been an erroneous conclusion reached by this court in the Anixter case, as to the point referred to. The former court, in the ease of Ex parte Anixter, 166 Cal. 762 , [ 138 Pac. 353 ], the self-same case which was before this court and above referred to (the petitioner, after being remanded by this court, having petitioned the supreme court for and there claimed the right to his release, through the writ of habeas corpus, for the identical reasons urged in this court), has held that the petitioner here is right in his contention that the legislative authority of a political subdivision of the state cannot enforce penalties against those soliciting orders within its jurisdiction for intoxicating

I take it that the principle thus enunciated is no less applicable to the Local Option Law where the provisions thereof are invoked by the electors of a municipality or of any other territory in the state to which the provisions of said law may be made to apply than to a municipal ordinance, and that, therefore, although the Local Option Law has been adopted by the electors of the city of Woodland and its provisions made applicable to the territory embraced within the incorporated limits of said city, the act of soliciting orders or making agreements within said city :or the sale or delivery of intoxicating liquors cannot be prevented or penalized, where the intoxicants as to which such ¡.elicitation is prosecuted or agreements are made are to be delivered without or beyond such incorporated limits.

The proposition thus decided, however, is of no importance here, so far as is concerned the decision of the question presented for determination in this proceeding. As before stated and as is obvious, the sole question submitted here is whether the respondents have jurisdiction of the subject matter of the complaint and of the person of the petitioner. It is true that, while the complaint charges that the solicitation was carried

The next point urged against the validity of the proceedings pending before the respondents is, as seen, that the crime of soliciting orders, taking orders' or making agreements within no-license territory for the sale or delivery of intoxicants therein cannot be committed, within the contemplation of section 15 of the statute, unless such solicitation or making of agreements be carried on within such territory in person by a party or his agent. In other words, the contention is that, to constitute either or any of the offenses denounced by said section, the party charged or his agent must be shown to have been physically present within the no-license territory and there in person have solicited or taken such orders or made such agreements. This construction of said section is arrived at by a grammatical analysis of the phraseology thereof, whereby, considering the construction concretely, it

In support of the construction thus arrived at, it is asserted that, grammatically, the phrase, “ within any no-license territory,” as used in the section, “necessarily qualifies the series of nouns commencing with the word, ‘person’ (as used therein), rather than the verb, ‘solicit,’ or the still more remote phrase, ‘for the sale or delivery.’ ” As sustaining that theory of the legislative intent, so far as said section is concerned, attention is directed to the rule laid down in section 73 of Black’s “Interpretation of Laws” as follows: “As a general rule, relative, qualifying or limiting words or clauses in a statute are to be referred to the next preceding antecedent, unless the context or the evident meaning of the enactment requires a different construction.”' (The italics are mine.) Or, as the rule is stated in Piper v. Boston etc. R. R., 75 N. H. 435 , [ 75 Atl. 1041 ], “the general rule of grammar and law is that relative terms refer to the next preceding antecedent, unless it is clear from the context that a different one was intended.” (Italics mine.)

Not only by implication, from the fact of their reliance upon the rule of interpretation above quoted, do counsel for the petitioner concede that the construction of laws or contracts according to strict grammatical rules will not prevail where such construction is clearly opposed to the context or evident spirit or purpose of such laws or contracts, but they expressly admit the soundness of the proposition in their brief. They vigorously contend, however, that their construction of section 15 is in perfect harmony with the spirit and purpose of the local option law. The argument is that the sole and paramount object of said law is, as is claimed to be true of all laws licensing, regulating, or prohibiting the sale of liquor, to control, regulate, or prohibit the public traffic in intoxicants; that it is directed against the saloons and places where intoxicating liquor is sold and drunk upon the premises ; that the act does not, even if it were competent for the

But, so the argument runs, even assuming that the soliciting of orders from individuals within no-license territory was intended to be and is proscribed, since the law cannot punish for sales of liquor committed outside of such territory, “it cannot be presumed that the usual and ordinary incidents of sales are prohibited. Accordingly,” so it is then declared, “it is the personal soliciting by those within the territory rather than advertising or the mailing of circulars by those outside the territory that is sought to be prevented.”

I cannot agree with the petitioner in its construction of section 15 of the Local Option Act, nor am I impressed with the various arguments offered in support of such construction, some of which are briefly given in the foregoing statement of its conception of the intent and scope of said section. It may well be conceded that the language of said section, when tested solely by the strict rules of grammar, appears, upon its face, to be involved in some obscurity. At any rate, it can be said that the legislative intent as to the scope of the section could well have been expressed with a greater degree of perspicuity, or, in other words, its phraseology so arranged as that there would be left no ground upon which there could exist any difference of opinion as to what I conceive must be its true import. But, when examined under the test of familiar rules of statutory construction, aided by the light afforded by the vital object which is obviously sought to be accomplished by the legislation of which it forms a part, no doubt can reasonably arise that said section was intended by the legislature to prevent, if possible, or to penalize, if committed, the solicitation of orders, the taking of orders or the making of agreements within no-license territory for the sale or delivery of intoxicating liquors in such territory, irrespective of the manner in which such acts may be accomplished. By this I mean to say that one who solicits orders or makes agreements through the instrumentality of letters,

A fundamental canon of construction is that every statute must be construed with reference to the object intended to be accomplished by it. (People v. Dana, 22 Cal. 11 .) “In order to ascertain this object it is proper to consider the occasion and necessity of its enactment, . . . and the statute should be given that construction which is best calculated to advance its object, by suppressing the mischief and securing the benefits intended.” (36 Cyc., p. 1110, and cases cited in the foot notes.) And, where a statute “ s fairly susceptible of two constructions, one leading inevitably to mischief or absurdity, and the other consistent with so .md sense and wise policy, the former should be rejected and the latter adopted.” (In re Mitchell, 120 Cal. 384 , 386 [ 52 Pac. 799 ].) The rule last stated is merely a repetition n another form of the rule relied upon by the petitioner and above quoted, and has peculiar force in its application to the proposition that where a statute may be given a grammalical construction leading to a result in manifest opposition to its purpose and intent or in circumvention of its paramount object, such construction will be rejected and one adopted which will effectuate or carry out the object designed by the legislature to be accomplished by the act.

Aided by the foregoing rules, no difficulty seems to be in the way of reaching an accurate conclusion as to the meaning and scope which it was .the legislative intention that section 15 of the act in question, particularly i.he words, “solicit orders,” should bear and possess.

As to the general object and the legality of the legislation involved in the local option law, and incidentally noticing some of the arguments set up in support of the petitioner’s position, it may first be conceded that the real root of the mischiefs and evils which too frequently directly result from the use of intoxicants is in the public retail traffic therein, and that it is true, as counsel for the petitioner maintain, that legislation bearing upon the question of intoxicating liquors is primarily directed against such traffic. It is also true that

. therefore, within the constitutional competence of the legislature to prohibit, and to authorize punishment for a violation of the prohibition, every act and form of soliciting for orders within no-license territory for the sale of intoxicants, to be delivered in such territory, regardless of the use to which they may be intended to be put—that is to say, irrespective of whether the orders so solicited related to individual or other uses. In the case here, the statute has made it unlawful to solicit such orders from all persons within no-lieense territory, except, perhaps, as before suggested, registered pharmacists, and, although, as shown, individual use of liquors at one’s home for the purposes specified in section 16 is permitted, it is very clear, not, alone from the manifest general purposes of the law, but also from the fact that the taking of orders from individuals for liquors to be used at their

Nor is it important, so far as is concerned either the act of soliciting orders or that of making agreements for the sale or delivery of intoxicants, whethe; the sale contemplated by such solicitation or agreements is consummated outside of the territory, for the gist or gravamen of the offense of soliciting orders or that of making agreements for intoxicants within such territory is in the solicitation or the making of the agreements with the purpose and intent of delivering such liquors therein. It is, in other words, not unlike the crime of burglary, which consists of the mere entering of a building with the intent to steal or commit some other crime, irrespective of whether or not any property be actually stolen or any other act which in itself would constitute a different crime was actually committed.

The foregoing views are, I think, in perfect accord with those of the supreme court as expressed in the Anixter case, above referred to, concerning an ordinance whose language is very much like that contained in section 15 of the act under consideration.

It has already been declared that by section 15 it was intended to enjoin every form of solicitation of orders for intoxicants. By this it was intended to be said that, viewing section 15 by the light of the obvious paramount purpose sought to be achieved by the legislation represented by the act, no other reasonable meaning can be deduced from it than that thus it was intended to prevent every kind and character of solicitation, whatever may be its form, whether in person or by letter or other like communications sent either from without or from within no-license territory through the United States mail or by messengers and addressed to persons within

The construction for which the petitioner contends would render the act woefully impotent for the accomplishment of its purpose as a prohibitory measure. It would, indeed, open up an avenue whereby the central object of the statute could be frustrated, almost, if not quite, to the extent of rendering it nugatory. It would, in brief, countenance a gross evasion of the evident spirit and intent of the statute, for liquor dealers engaged in business outside the borders of no-license territory could, with impunity, and immunity from punishment carry on a mail order liquor traffic within such territory (Rose v. State, 4 Ga. App. 588 , [ 62 S. E. 117 ]), and thus impart to the act an effect which would make it practically prohibitory of prohibition rather than prohibitory of the liquor business. Besides, such a construction would have the effect of granting to persons licensed to conduct the liquor trade outside the limits of no-license territory privileges exercisable within such territory which cannot be enjoyed by persons residing or doing business therein—that is to say that, while persons engaged in the liquor business outside the boundaries of no-license territory could solicit orders and make agreements touching intoxicants, manufacturers of such liquors maintaining and carrying on their business as such within the limits thereof cannot legally do so, a discrimination which the legislature doubtless has the right to make as to the liquor traffic but which, from ’ the manifestly absurd consequences which would follow therefrom, it cannot reasonably be supposed to have intended; for thereby the city embracing such territory or the county in which it is situated would not only be deprived of its revenues, but of the power of exercising the proper control of the traffic which results from the imposition of the license. (People v. Swenson, 162 Mich. 397 , [ 127 N. W. 302 ].)

Counsel, however, perceive no difference between the act of soliciting orders by means of letters or circulars sent through the mail to particular individuals in no-license territory and the circulation in such territory of newspapers, containing among others relating to other matters, advertisements extolling the quality and giving the prices of certain brands of liquor. But there is an obvious distinction between the two

But there is ample judicial authority for holding that a solicitation of orders by mail for the sale of liquors to be delivered in no-license units within- which solicitation of such

In Rose v. State, 4 Ga. App. 588 , [ 62 S. E. 117 ], the question is elaborately and ably examined in a case calling for the construction of a section of the Penal Code of the state of Georgia which provided: “If any person shall sell, contract to sell, take orders for or solicit personally or by agent, the sale of spirituous, malt or intoxicating liquors in any county or town or municipal corporation or militia district or other place where the sale of such liquors is prohibited by law, high license or otherwise, he shall be guilty of a misdemeanor.” The counties of the state of Georgia are given the authority by a general áct of the state legislature to prohibit the traffic in intoxicating liquors within their respective jurisdictions. The defendants were accused of personally soliciting the sale of intoxicating liquors within Bartow County in said state, “said soliciting being made by and through the United States mail, by mailing letters to the citizens of Bartow County from the city of Chattanooga, Tenn., containing self-addressed envelopes, order blanks, and other printed and written matter soliciting the sale of said liquor, said letters having been mailed and delivered” to certain named citizens of said county. It was claimed in that case, as here, that the solicitation of orders for liquor by mail did not constitute the solicitation contemplated or intended by the code section, but that the section applied only to solicitations made by one in person, ‘ and that for that reason the solicitation of sales, referred to, whether it be by the seller himself or by his agent, must be by personal visit to the locality where such sales are prohibited.” In support of that contention, special emphasis was placed upon the language of the section, “solicit personally.” The court rejected the construction thus given the section and the argument advanced in support of it, saying, inter alia: “When we consider that the intention of the act, to which we have already referred, was to make criminal the introduction of intoxicants from a county where the sale of such intoxicants was legal into a county where the sale was prohibited, it is readily to be seen that, while the solicitation which was made penal could be a personal solicitation, it was none the less made a crime for any person, either himself or by an agent, in cmy way, to solicit the sale of intoxicating

In Hayner v. State, 83 Ohio St. 178 , [ 93 N. E. 900 ], the Ohio supreme court sustained a verdict whereby the defendant was convicted of the crime of soliciting orders within “dry” territory for intoxicating liquors, said soliciting having been done by mail, under circumstances precisely the same as those disclosed by the complaint in this ease, the court, among other things, saying: “We assume thal the act of soliciting may be done by letter as well as in person.”

In State v. Holmes, 68 Wash. 7 , [ 122 Pac. 345 ], the defendant had been convicted of the charge of soliciting orders for intoxicating liquors within a dry unit, under a statute of the state of Washington making such solicitation a misdemeanor. The soliciting was done, precisely as here, by means of a circular letter sent through the United States mail by the defendant from the city of Seattle, where the sale'of intoxicating liquors was then permitted by law, to a citizen of the city of Everett, in said state, which vas a unit in which the sale of such liquors was then unlawful. The supreme court of that state upheld the judgment following the verdict of conviction upon the authority, principally, of the case of Rose v. State, of which it had this to say in its opinion in the Holmes case: “Upon every point discussed, we regard that opinion as logical, unanswerable, and v-mll sustained by authority. Its reasoning and conclusions, which we approve and adopt, when applied to the facts in this, case, not only support the proposition that appellant’s act was an unlawful solicitation of orders for intoxicating liquor» in a dry unit, but are also convincing to the effect that such unlawful act was committed in the city of Everett, where appellant’s letter was received by Swalwell.” (See, also, United States v. Thayer, 209 U. S. 39 , [ 52 L. Ed. 673 , 28 Sup. Ct. Rep. 426 ]; In re Palliser, 156 U. S. 266 , [ 34 L. Ed. 514 , 10 Sup. Ct. Rep. 1034 ]; Horner v.

As is shown by the above cited cases, and, indeed, as necessarily follows from the conclusion arrived at here with respect to the scope of the language, “solicit orders,” as employed in the statute in question, the crime charged against the petitioner was committed upon the receipt of the circular letter in the city of Woodland by the party to whom it was addressed, and the venue of the offense is consequently in Tolo County, in which the city of Woodland is situated. (See cases above cited, particularly United States v. Thayer.)

I have carefully examined the brief filed here by counsel amici curiae. It is unnecessary to review in detail the arguments and authorities presented therein. It is enough to say that most of the points made in said brief are in' effect answered in the foregoing views of the vital questions submitted by this proceeding. It may be remarked, however, that many of the cases cited by counsel in the brief referred to have no application to the case at bar. The eases referred to have to do with legislation purporting to control, as a police regulation, businesses which are in themselves legitimate, and which, though subject to the police power, are essential to the well-being of society and which can neither be suppressed nor so regulated as that unjust, burdensome, or discriminatory conditions may be imposed upon them or the right to conduct them. For instance, the slaughter house, the cemetery, and other like eases, cited by counsel as amici cuñae, obviously deal with occupations in which people have the inherent right to engage, because they are, unlike the liquor traffic, necessary and useful; yet they are of a character that, unless managed in a proper way, they may become a source of great injury to the comfort and health of communities. Therefore, as stated, the state, in the exercise of its powers of police, may regulate the manner of their management so as to prevent, as far as possible, the injurious results to others which are known to come from the prosecution of such occupations; but, as declared, such regulations can neither be prohibitory nor discriminatory in their effect, as is true, in my opinion, as to legislation affecting the liquor traffic.

Chipman, P. J., and.Burnett, ¿„, concurred.

A petition to have the cause heard in the supreme court after judgment in the district court of appeal, was denied by the supreme court on April 13, "J 914.