
    SALES C. O. D. OF INTOXICATING LIQUORS IN DRY TERRITORY.
    Circuit Court of Harrison County.
    William Mullen v. The State of Ohio.
    Decided, December Term, 1907.
    
      Sales — Of Intoxicating Liquors O. 0. D. — -Sale Complete, When — Delivery to the Carrier Constitutes Actual Receipt Toy the Purchaser — • Agency of. the Carrier — Collection on Delivery Constitutes Retention only of Vendor’s Lien — Contracts, Complete and Executory —Criminal Law.
    
    When a purchaser living in a local option district orders, in writing by mail, from a person lawfully engaged in the liquor business outside of such district, a package of liquor to be sent to him for bis own use by express C. O. D. to a station within the prescribed district, and such purchaser received such package, pays the price for the.same and the charges for the return of the money to the express company for the seller, the sale is complete upon the delivery of the package to the express company by the seller and he does not violate the law in the prescribed district.
    Cook, J.; Burrows, J., and Laubie, J., concur.
   William Mullen was indicted, convicted and sentenced for selling intoxicating liquors in Green township, a local option township in this county, and error is prosecuted in this court. He was tried upon an agreed statement of facts which sets forth that he was lawfully engaged in the liquor business at Amsterdam in Jefferson county, this state. That a man by the name of Howard Dunn, residing in Green township, sent an order by mail to Mullen to send him a case of lager beer by express to Burton station, -which was in Green township, and on the line of the Cleveland & Alliance Railroad. The order set forth that when the beer arrived at Burton he would pay for it to the express company when delivered to him, and also pay the express-age on the beer and the charges- of the company for sending the money, the price of the beer, to Mullen. In a word, it was a clear C. O. D. order on the part of Dunn. The beer was shipped by Mullen in accordance with the order; Dunn received it, paying the express company the price of the beer and the charges for returning the money to Mullen, which was paid over to him by the express company. Mullen at the time of expressing the beer to Dunn knew that Green township was a local option township; but the beer was ordered by Dunn in good faith for his own private use; and there was no combination upon the part of Mullen and Dunn to violate the local option law of Green township, differing in that respect from the case of State v. O’Neil, 58 Vermont, 82 (56 American Reports, 557), reference to which is made in the case of O’Neil v. Vermont, 144 U. S., Reports, 323.

By the statement of facts the question is fairly and squarely made whether or not a person under such circumstances-, lawfully engaged in the liquor business, may send liquor upon an order received in writing at his place of business into a local option district by express G. O. D.

The answer necessarily turns upon the determination of the question as to where the sale was made. Was it at Amsterdam, Jefferson county, or in Green township, Harrison county ? Dunn having in his order designated the common carrier by which the beer was to be shipped, there could be no question but what-the liquor was his at the time of such delivery at Amsterdam, unless the fact that it was to be shipped C. 0. D. changes the rule.

Norris v. State, 25 O. S., 217. The third paragraph of the syllabus of that case is as follows:

“3. Where A, by false pretenses contained in a letter sent by mail, procures the owner of goods to deliver them to a designated common carrier in one county, consigned to the writer in another county, the offense of obtaining goods by false pretenses is complete in the former county, and the offense must be prose: euted therein. ’ ’

In Benjamin on Sales, Section 181, page 163, the author says:

“It is well settled that the delivery of goods to a common carrier, a fortiori to one specially designated by the purchaser, for conveyance to him or to a' place designated by him, cons-titutes an actual receipt by the purchaser.' In such cases the carrier is, in .contemplation of law, the bailee of the person to whom, not by whom, the goods are sent, the latter in employing the carrier being considered as an agent of the former for that purpose (a).”

It is difficult to see how the order of the purchaser that the goods should be sent C. O. D. would in any manner change the rule1. He had directed his agent to whom the goods should be delivered at the place of consignment and the mere fact that he had elected to send the purchase price back by that agent to the seller, when it had delivered the goods to him, would not seem to affect the general rule in any way.

It is said that the goods are not the goods of the purchaser until manually delivered to him. Not by any means. The goods are his upon delivery to the carrier. The seller simply has a technical claim upon the goods to insure the payment of the purchase price.

As held in Commonwealth v. Fleming, 130 Pennsylvania State, 139:

“4. An order from a seller to a carrier to collect on delivery is a mere provision for retention of the seller’s lien; if accepted it creates a contract between the seller and the carrier, on breach of which by the latter, the seller may recover the price from him; but it does not make'payment by the vendee a condition precedent to delivery, so that the seller may reclaim goods delivered by the carrier without payment.”

The carrier is the agent of the purchaser throughout. He had designated it as such; it was to receive the goods and deliver them to him; it was to receive the purchase price and carry the same back to the seller, for all of which services the purchaser was to pay the charges. There is nothing unlawful in this service, even if it should be held the carrier was the agent of both parties. It would in no sense be such a double agency as to make it improper. No such'diversity of interest whatever as to make it antagonistic.

That in such cases the sale is fully completed when the liquor is delivered to the common carrier, subject only to the .technical lien o£ the seller that it must not be delivered by the carrier to the purchaser until the purchase price is paid, is in accordance with the general tenor of the decisions in the different states.

In the I7th Volume of the American & English Encyclopedia of Law (2d Edition), page 300, it is said:

“3. [Where Goods Are Shipped G. O. Z>.] A somewhat different question is presented when the sales are made C. O. D. There is much diversity of opinion as to whether sales of this character are to be deemed absolute sales on the part of the vendor with a provision for withholding delivery until actual payment, so as to preserve the lien for the price, or only as ex-ecutory contracts of sale not completed until actual delivery into the hands of the buyer. In a number of decisions it has been held that for the purpose of determining whether the seller has violated the liquor laws in force where the buyer lives, a sale C. O. D. is not complete until delivery, acceptance, and payment of the price by the person ordering the liquors. At least so far as cases dealing with intoxicating liquors are concerned. However, the weight of authority is against the foregoing view, and it is generally held that where intoxicating liquors are ordered to be shipped C. O. D. the sale is completed when the liquor is delivered to the carrier.”

The text is fortified by decisions from a large number of states. See also Vol. 3 of Supplement, 762, where a large number of other authorities are referred to.

In Black on Intoxicating Liquors, 434, it is said:

“2. A licensed dealer who receives, at his place of business, an order for liquor from a place in which he has no license, and fills it by selecting the liquor from his stock and delivering it to an express company or other carrier to be carried to the purchaser, does not violate the license law, • although the carrier agrees to collect and return the price; for the sale is made at the place where the goods are separated from the general stock and delivered to the carrier, such delivery being delivery to- consignee. ’ ’

This author also refers to a large number of authorities in support of the text.

But is the question an open one in this state? The case of The Treasurer of Athens County v. Luchs, which went to the Supreme Court and which was decided without report, seems to be decisive of this ease.

B. E. Minteer, for plaintiff in error.

E. S. McNamee, for defendant in error.

In that case Luehs was engaged in the sale of intoxicating liquors at Marietta and shipped all kinds of liquors upon express orders C. 0. D. almost weekly, sometimes twice a week, to Broad-well, Lathrop and Amesville in Athens county. To such an extent were these shipments, that there could be no question, -from the record which we have examined, that he was keeping places for the sale of intoxicating liquors at these various express offices, if the sales were made in Athens county. The auditor of Athens county put Luehs upon the tax duplicate for the payment of the Dow tax; suit was instituted in the common pleas court by the treasurer of Athens county to recover the amount so placed on the tax duplicate. Luehs defended solely upon the ground that the sales were made at his place of business in Marietta, Washington county. The court of common pleas decided in favor of Luehs, and the ease was taken to the circuit court upon error, where the common pleas court was affirmed, and error was thereupon prosecuted in'the Supreme Court, where the circuit court was affirmed. Tie have examined the briefs in circuit and supreme courts and no other question was made but one; that although the orders were to send the liquor C. 0. D. yet the sales were made in Washington county. We do not see that any other defense could have been made, for if Luehs was engaged in the sale of intoxicating liquors in Athens county as we have said he was, if the liquors were sold in that county, then under Section 4369-9 he would be required to pay the tax in Athens county.

Judgment of common pleas court is reversed and the accused is discharged.  