
    STATE and TOWN OF WILSON v. J. T. WILLIAMS.
    (Filed 22 December, 1916.)
    Spirituous Liquors — Cider—Manufactured, Etc. — Statutes—Exceptions.
    The right to sell property is one of the incidents of ownership and should not be withdrawn or restricted unless clearly required by statute; and construing together the laws relative to prohibition, chapter 71, Extra Session of the Legislature of 1908, excepting the sale of “cider in any quantity by the manufacturer from fruits grown on his own lands within the State,” appearing in substantially similar terms.in “An act to prohibit the sale of near-beer,” etc., ch. 35, Laws 1911, sec. 3, and the exception from the Search and Seizure Laws, ch. 44, Laws 1913, of “wines and ciders in any quantity from fruits grown on the premises of any persons in whose possession they may be,” and ch. 97, Laws 1915, passed primarily to regulate the shipment of spirituous liquor, which is silent upon this subject, it is Held, that the sale of cider containing 4.7 per cent alcohol does not come within the inhibition of our statutes, and may be sold by the manufacturer from fruits grown on his own premises within the State, or by his agent, when the parties are acting in good faith.
    Clark, C. J., dissenting.
    CeimiNal action charging defendant witb selling cider contrary to law, tried before Allen, J., and a jury, at Fall Term, 1916, of 'Wilson.
    
      Tbe jury rendered a special verdict as follows:
    “We, tbe jury impaneled to try this case, return to tbe court our verdict : That tbe defendant J. T. Williams, agent of 11. T. Williams, sold for gain, in tbe town of Wilson, on or about tbe 15th day of September, 1916, to persons to tbe jurors unknown, and on divers other occasions, apple cider containing 4.7 per cent of alcobol. Tbe cider so sold was manufactured by 11. T. Williams from fruits grown on tbe land of M. T. Williams in North Carolina. J". T. Williams, in selling such cider, was a bona fide agent of M. T. Williams for such purpose, and it was not sold at tbe place of manufacture, that is, on tbe lands of M. T. Williams. If tbe court is of tbe opinion that tbe defendant is guilty upon this verdict, we find tbe defendant guilty; but if tbe court is of tbe opinion that tbe defendant is not guilty upon this verdict, we find tbe defendant not guilty.”
    And on such findings, tbe court being of opinion- that defendant was not guilty o'f any offense, verdict was entered accordingly, defendant discharged, and the State appealed.
    
      Attorney-General Biclcett and Asistant Attorney-General Galvert for the State.
    
    
      No counsel for defendants.
    
   Hotce, J.

Tbe statutes controlling tbe question in this State have not, thus far, prohibited tbe sale of “cider in any quantity by tbe manufacturer from fruit's grown on bis own lands within tbe State of North Carolina.” This exception, contained in tbe Laws of 1908, Extra Session, chapter 71, appears in tbe same or substantially similar terms in chapter 35, Laws 1911, sec. 3, tbe same being entitled “An act to prohibit tbe sale of near-beer, beerine, and other like drinks,” and chapter 44, Laws 1913, commonly known as tbe Search and Seizure Laws, excepts from tbe operative section of tbe act “wines and ciders in any quantity manufactured from fruits grown on tbe premises of tbe person in whose possession they may be.” Chapter 97, Laws 1915, was passed primarily to regulate tbe shipments of spirituous, vinous, or malt liquors, and seems to contain no provision applicable to tbe facts of this record. It thus appears to be tbe policy and express • purpose of our legislators to except from tbe operation of tbe prohibition laws tbe sale of cider by tbe manufacturer, when made from fruits grown upon bis lands within the State, “and being allowed to sell in a.ny quantity and in any place,” it is the evident purpose and meaning of tbe law that such sales may be effected by any of tbe ordinary methods by which an owner is allowed to dispose of his property.

This right to sell property, and either by an agent or employee, is one of tbe incidents of ownership, and should not be withdrawn or restricted unless tbe statute clearly requires it. Nance v. R. R., 149 N. C., 366 (2d Ed.); Black on Interpretation of Laws, p. 451.

Even in case of intoxicating liquors, which' can only be sold by license duly issued, the license is held to protect the employees and agents of the proprietor selling at the place where the license designates. Black on Intoxicating Liquors, sec. 132, citing Rungen v. State, 52 Ind., 320, and other cases. And these excepting provisions, withdrawing cider from the effect and policy of the prohibition laws and, as stated, allowing sales in any quantity and any place, should, by correct construction, operate to allow such sales by the employees and agents of the manufacturer when it is shown, as in this case, that the parties are acting bona fide and the cider is made from fruit grown on the manufacturer’s lands.

Whether this exception should continue to prevail because, at a minimum risk, it allows landowners to dispose of their fruit which would otherwise, year by year, rot on their lands and be altogether lost, or whether it should be repealed because it may unduly afford methods of evading the purpose and policy of our prohibition laws, these are matters entirely for legislative consideration, and may not be allowed to affect the construction of the present statutes, which, in our opinion, are clearly designed and framed to enable a manufacturer of cider from his own fruit to dispose of it, and to do so by ordinary methods, in any quantity and at any place.

There is no error in the ruling of the court, and the proceedings 'below are affirmed.

No error.

Clarx, C. J".,

dissenting: The general prohibition law of 1908, prohibiting the manufacture or sale of any spirituous, vinous, fermented, or malt liquors, or intoxicating bitters, makes an exception of “the sale of cider in any quantity by the manufacturer from fruits grown on his lands within the State of North Carolina.” Laws Special Session 1908, ch. 71, sec. 1.

Experience having proven that this act permitted evasions of the law, the “Near-Beer Act,” Laws 1911, ch. 35, sec. 1, provides that “It shall be unlawful for any person or persons, firm or corporation, to sell or dispose of for gain, near-beer, beerine, or other spirituous, vinous, or malt liquors or mixtures, of any kind, and under whatsoever name called, that shall contain alcohol, or cocaine, or morphine, or other opium derivative, except as herein provided.”

This contains the same exceptions as the act of 1908 in regard to the sale of cider, “by the manufacturer from fruits grown on his own lands in this State.” It is settled that every statute should be “construed according to tbe intent of tbe Legislature and so as to repress-the evil and advance tbe remedy.” Tbe special verdict finds that this cider contained more than 4 per cent of alcohol. It was not sold by tbe manufacturer, nor by bis servant, but by tbe defendant, who was-an agent or factor. He was not an employee, but an “agent,” and presumably be was selling on a commission or at a profit above a certain price. This is not authorized by tbe statute.

It is apparent that tbe act of 1908 and all tbe acts subsequent were intended to treat tbe sale of alcohol as contrary to tbe public interest, as a poison of tbe same nature as cocaine and opium, with which it is associated in tbe statute. Tbe grant of tbe privilege to sell cider was intended to be restricted to tbe manufacturer himself, or at tbe very furthest by bis employee or servant. To permit it to be sold by any “agent” is not in the wording of tbe statute, and certainly not within its spirit, for this would permit cider containing “more than 4 per cent alcohol,” as in this case, to be sold all over North Carolina by “agents” of any manufacturer.

This is contrary to tbe letter and spirit of tbe law, which are that tbe prohibition shall be as effective as possible,, which is shown by tbe fact that whenever this Court has found a defect in tbe law tbe next Legislature has always promptly cured tbe defect. It is also contrary to tbe general spirit of such legislation which has been shown not only by tbe almost world-wide restriction of tbe sale of alcohol and other intoxicants, but by tbe fact that in twenty-five States and in tbe great territory of Alaska total prohibition has been voted, and in all the other States (except two) there are large areas of local prohibition,' so that 90 per cent of tbe area of tbe Union and more than 80 per cent of its population is now under total prohibition. It being tbe evident intent of legislation to make prohibition more general and entirely effective, is it a reasonable construction to place upon tbe privilege given a manufacturer to sell cider, “made of bis own fruit, on bis own land in this State,” tbe construction that an agent, tbe defendant here, instead of the manufacturer (or his servant) can sell cider containing more than 4 per cent alcohol anywhere in North Carolina?

Is it not more' consonant with tbe rule, that a statute should be construed according to tbe intent of tbe Legislature, and to advance tbe remedy and to repress tbe evil, to say that tbe privilege to a manufacturer to sell bis own cider made by himself was not intended to go beyond tbe manufacturer himself, or bis servant, or employee under bis supervision. It was intended to be a privilege personal to him, and not to be exercised by tbe defendant or any one else, at any place in North Carolina. *

There is ground for giving a personal privilege to one who makes cider of bis own fruit grown on bis own land, but none whatever to> authorize its sale by any kind of an agent, on any kind of terms, anywhere in the State.

This is an abuse of the privilege, and is not authorized by the statute. Upon the special verdict the defendant was “selling for gain,” and he was not “the manufacturer.” If it was not intended to restrict the sale to the manufacturer, the act would have permitted a sale of cider withoiit any restriction.  