
    Hayner v. The State.
    
      Traffic in intoxicating liquors — Constitutionality of law against soliciting orders — In county where sale is prohibited — Question .of number of solicitations — Application of section 6/Q¿j, Revised Statutes — Solicitation by letter or by person — Applies to county where sale is to be completed.
    
    1. Section four of the act passed March 12, 1909 (100 O. L., 89), entitled “An act to amend and supplement section 5 of an act entitled, ‘An act providing against the evils resulting from the traffic in intoxicating liquors,’ passed. May 14, 1886, as amended March 28, 1906, and to further provide against the evils resulting from the traffic in intoxicating liquors,” which section makes it an offense to solicit'orders for intoxicating liquor in any county where the sale as a beverage is prohibited, is not violative of the constitution of the state and is a valid law.
    2. To prove a violation of this section it is not necessary to show a number of solicitations. By virtue of section 6794 of the Revised Statutes, which provides that words in the plural include the singular, and in the singular include the plural, proof of one solicitation satisfies the requirements of the statute.
    3. Such solicitation may be made by letter as well as in person.
    4. Where a letter soliciting an order for the sale of liquor provides, as a condition of sale, that the person solicited, on receiving the liquor, has the option to accept or not,- and to send the price named only in case he approves the goods and concludes to purchase, otherwise to return them at the sender’s expense, such approval and conclusion to purchase are necessary to complete a sale. Therefore, the solicitation is for a sale to be completed in the county of the residence or business of the one solicited, and prosecution for violation of the act is properly conducted in such county.
    (No. 12416
    Decided December 20, 1910.)
    Error to the Circuit Court of Knox county.
    At the November term, 1909, of the common pleas of Knox, the plaintiff in error, W. M. Hayner, was indicted for a violation of the act providing against the evils resulting from the traffic in intoxicating liquor, passed May 14, 1886, as amended March 28, 1906, and further amended March 12, 1909, the charge being that of soliciting, October 11, 1909, an order for the sale of intoxicating liquor as a beverage in the county of Knox, a county in which the sale of intoxicating liquor as a beverage had been and then was prohibited.
    To this indictment the defendant pleaded not guilty. On trial he was convicted and sentenced to pay a fine of three hundred dollars and the costs. This sentence and judgment was affirmed by the circuit court. The accused brings this proceeding to reverse both judgments.
    
      Messrs. McMahon & McMahon and Messrs. Waight & Moore, for plaintiff in error.
    The section of the statutes under which the indictment was found is section 4, 100 O. L., 92.
    This section is the closing one of a statute of a conglomerate' nature, evidently one of license and regulation, acknowledging the right to existence of the saloon as a saloon, but establishing a standard for men who are to operate the same, and providing for the elimination of disorderly places and of improper men.
    As the constitution prohibits license, any law must fail which in effect amounts in law to license, and no valid argument can be made for either side on the assumption of license. But in the absence of prohibition the business in controversy is entitled to protection as other property. We are now only concerned with the interpretation of section 4. The offense is a misdemeanor, being statutory, and is not the violation of an ordinance.
    This being a penal statute, it is to be construed strictly. State v. Meyers, 56 Ohio St., 350; Shultz v. Cambridge, 38 Ohio St., 659; Railway Co. v. Wells, 65 Ohio St., 313; Moore v. Given, 39 Ohio St., 661.
    The state claims that a single letter written or mailed as this was, is within the statute. In such case each letter must be a separate offense. After the first offense, each offense is subject to a fine of $800. Assuming that in the mail-order business 1,000 such letters were mailed to Knox county, the defendant is liable to fines of $800,000 after the first conviction.
    All-that we now argue is that the state is wrong in the contention we are now considering. The language of the statute bears us out. The offense described is the “soliciting of orders,” not the soliciting of “an order.” Railway Co. v. Wells, 65 Ohio St., 319; Rockwell v. State, 11 Ohio, 131; Miller & Gibson v. State, 3 Ohio St., 477.
    
    
      In construing a statute upon a subject upon which numerous statutes have been passed, indicating a policy, the provisions of the statute should be given a construction in harmony with the policy shown by a consideration of all of them. Cincinnati v. Connor, 55 Ohio St., 82.
    The county local option statute only prohibits sales, made within the county, if a dry one, and does not prevent the purchase by any inhabitant •of a dry county, of intoxicating liquors as a beverage in a wet district, either by order by mail or by messenger sent into a wet territory — and does not forbid to the citizen of the dry county the right to drink his liquor when purchased. State v. Mullin, 78 Ohio St., 358; State v. Lynch, 81 Ohio St., 336.
    Of course, without exception in the statute, which stands alone and is complete in itself, an exception cannot be interpolated by the court. Stevens v. State, 61 Ohio St., 597; Leisy v. Hardin, 135 U. S., 100.
    The same is true of Ohio. All of the territory of Ohio is wet, unless made dry by vote under the statutes named. Even the saloon is recognized and regulated by the Dean law, where liquors are sold over the counter to be drunk on the premises. And the legality of the manufacture of whiskey and its sale, and of the sale of whiskey, etc., by dealers, is expressly recognized even in certain dry territory.
    This condition in Ohio must always be borne in mind, as contrasted with states where state-wide prohibition exists, in which state all sales are illegal, even to a certain extent interstate commerce sales. And when considering decisions of the courts of other states, this must be remembered.
    Under the construction placed upon this law by the state, a person soliciting a single order, to be. filled in a wet territory, although that order is not filled, is visited with three times the penalty inflicted upon one who sells in violation of law within the county, or city, or residence district; six times as much as one who sells on Sunday, etc., etc. And such penalty must be inflicted on one not in the business who solicits a single sale, if the state’s argument is right. We cannot suppose that the legislature was ignorant of this great variance.
    We call attention to the language of Judge Davis in the case of Railway Co. v. Wells, 65 Ohio St., 319, where he refers to the severity of the penalty as an' argument against a claimed construction of the law.
    Premising that it has a right to receive an order from a dry county and to fill it, the usual course of business leads it necessarily into advertisement, either by mail or by newspaper publications. Prior to the passage of the solicitation law there was no question of its right to send its mail matter anywhere, or to advertise even in the papers published and circulated in the dry counties. This was exclusively its method of business, we will suppose, when the law was passed.
    Several recent cases, decided by the supreme court of the United States, are in point. Section 16, Bill of Rights; Article XIV, U. S. Constitution.
    Courts are not open, nor is one given the equal protection of the law if the penalties of conviction, fine and forfeiture of office await the honest citizen who believes his rights have been invaded, if such penalties attach to a failure to defeat the law.
    This is well reasoned in a very recent case "in the supreme court of the United States, decided March 23, 1908. Ex parte Young, 209 U. S., 123; Cutting v. Stock Yards Co., 183 U. S., 99.
    The statute is otherwise in violation of the constitution. Article 1, Section 1, Bill of Rights; Morgan v. Nolte, 37 Ohio St., 23.
    Admitting the right of the legislature to provide against the evils resulting from the sale or use of intoxicating liquors, and admitting that we might have state-wide prohibition by sole act of the legislature, yet the law must be tested by conditions that exist. And it is the right of the court to protect the individual from wrongful legislative action, and to determine what is an encroachment upon his liberty. Miller v. Crawford, 70 Ohio St., 207.
    Every crime involves, at least in its final consummation, the violation of some legal right of some individual or class of individuals, or the public. But no act constitutes a crime in its initial stage, unless that act, in its final consummation, constitutes a violation of some legal right of some individual, or class of individuals or the public. This principle is fundamental. Gage v. State, 24 C. C., 727.
    
      We conclude our argument with the point that the claim of the state, as applied to mail-order houses, brings the law into conflict with the government of the United States, in that it directly tends to control what may pass through the mails, and to materially diminish the revenues of the United States government.
    The government of the United States has exclusive control over the mails, etc. • There is no question here, as in the case of jurisdiction over interstate commerce, of a divided jurisdiction.
    The following cases are sufficient citations:
    
      Ex parte Jackson, 96 U. S., 735; In re Rapier, 143 U. S., 111; Clearing House v. Coyne, 194 U. S., 497; School, etc., v. McAnnulty, 187 U. S., 95.
    We must remember that the whole mail service is the creature of federal law, and that it is the source of immense revenue, as well as the cause of heavy expenditure. The right to use the mails comes from the federal government. It is the right of the citizen derived from federal laws. The state can in no way interfere. Railroad Co. v. Illinois, 163 U. S., 143; Railroad Co. v. Wharton, 207 U. S., 328.
    
      Mr. James A. Schaeffer, prosecuting attorney; Mr. W, B. Wheeler and Mr. James A. White, for defendant in error.
    The letter of Mr. Hayner shows an absolute defiance of the law of our state, both with reference to soliciting orders and the manner of shipping liquor into dry territory. A casual reading of the letter will settle the question beyond the peradventure of a doubt that Mr. Hayner not only solicited orders for liquor in Knox county, but used all of the phraseology and wording at his command to urge the receiver of the letter to send in his order for liquor, and in addition, offers a prize for so doing.
    When an offense is committed by sending a letter through a postoffice, the sender may sometimes be held at the place where he mails the letter. An unbroken line of decisions holds, however, that he may be held where the letter is received, especially where the letter represents a solicitation of any kind. In re Palliser, 136 U. S., 266.
    This theory is sustained in the following cases: King v. Girdwood, 1 Leach, 142; King v. Johnson, 7 East, 65; Commonwealth v. Blanding, 3 Pick., 304; In re Buell, 3 Dillon, 116; People v. Rathbun, 21 Wend., 509; People v. Adams, 3 Denio, 190; Foute v. State, 15 Lea, 712; United States v. Thayer, 209 U. S., 39.
    Other cases supporting this same theory are: Benson v. Henkel, 198 U. S., 15; Burton v. United States, 202 U. S., 387.
    It is clear as noonday that the buyer does not accept the whiskey under the Hayner contract until he has received it, smelled it, and tried it to his entire satisfaction. But the question of “sale” is not the real question at issue. It is a question of “soliciting for a sale.”
    The court will find a full discussion of this question in the case of Rose v. State, 62 S. E. Rep., 117. While this case was overruled by the supreme court on the ground that the letter came from outside the state, and was protected by the interstate commerce law, yet on all other points the decision states the law correctly with reference to soliciting orders for liquor inside of the state.
    
      Another case which throws light on this question is Zinn v. State, 114 S. W. Rep., 227.
    The courts have held a single sale of intoxicating liquor constitutes an offense. Belle Center v. Welsh, 24 W. L. B., 176; Volk v. Westerville, 8 N. P., 139, 3 N. P., N. S., 241.
    The statute, for example, enacted it should be a felony to steal bank notes, and it was adjudged it was a felony to steal a single bank note. King v. Hassel, 1 Leach, 1.
    The act providing for the prosecution of any person who should keep houses of bawdry or ill-fame, was construed to mean a person might be convicted who kept but one such place. State v. Main, 31 Conn., 572.
    The word “persons” in the plural is often construed as applicable to a single person. Hill v. Williams, 14 Serg. & R., 287.
    Where the statute imposed penalties for a failure to “comply with conditions of” a section, it was construed that a disobedience of any one of the provisions subjected the delinquent to the penalty. State v. Railway Co., 32 Fed. Rep., 722.
    The solicitation may be either in person, by an agent, or through a communication; consequently, no matter how the solicitation is made in dry territory, we claim it is a violation of the law regardless of whether the seller from whom the solicitation comes lives in wet territory or dry territory. The gist of opposing counsels’ contention is that if the sale of liquor could be made legally in Dayton, then it is not illegal to solicit an order for it in Knox county, or dry territory. This very question was before the supreme court of North Dakota in the case of Delamater v. State, 205 U. S., 93.
   Spear, J.

The statute which the plaintiff in error, Hayner, was convicted of violating is the fourth section of the act passed March 12, 1909, entitled: “An act to amend and supplement section 5 of an act entitled, ‘An act providing against the evils resulting from the traffic in intoxicating liquors/ passed May 14, 1886, as amended March 28, 1906, and to further provide against the evils resulting from traffic in intoxicating liquors,” 100 O. L., 89. Section four provides as follows: “Any person, or persons, firm, or any officer of any corporation, who, directly or indirectly, after April 15, 1909, solicits orders for intoxicating liquor in any county or territory where the sale of such liquor as a beverage is prohibited shall be subject to a fine of not less than one hundred and fifty dollars nor more than four hundred dollars for the first offense, and for the second offense not less than four hundred dollars nor more than eight hundred dollars.”

The record shows that the soliciting charged was done by the mailing at Dayton, Montgomery county, Ohio, by the defendant, addressed to The J. B. Foote Foundry Company, Fredericktown, Knox county, Ohio, on October 11, 1909, of a certain letter, circular and post card, and that the same were received by the Foote Foundry Company, by due course of mail at Fredericktown, Knox county, Ohio. The letter reads as. follows:

“Dayton, Ohio, October 9, 1909.
“The J. B. Foote Fdry. Co.,
“Fredericktown, Ohio:
“Dear Sir: That special ‘lock-stopper’ offer we wrote you about has created a sensation. We’ve never known anything to equal it. Orders are coming in a perfect flood from every state in the "Union. The response is so tremendous — so almost unanimous — that we are wondering why you, too, did not take advantage of it.
“The offer is still open and we urge you to send us your order now. We want to place some of this-magnificent whiskey before you. We want to. prove to you how rich, pure and delicious it is. We want to show you how much you save by our ‘direct from distillery’ plan of selling. We want you to have one of those handsome lock-stopper decanters we send with each order.
“You need not send us any money in advance. Just sign and mail us the enclosed order card and we will send you in plain sealed case express charges paid three quarts of Hayner private stock bottled-in-bond whiskey, and one quart of fine old W. S. K. straight whiskey, and we will include absolutely free Hayner’s.sideboard decanter with combination lock-stopper as described in the circular enclosed.
“When the goods arrive try the whiskey and examine the lock-stopper and decanter, and if you find them all we claim then remit us the price— $3.70. Otherwise you may return the goods at our expense and you will not be out one cent.
“The guarantee is clear and distinct. It means. what it says. We must please you, we riiust send you a quality that will surpass your highest expectations, and we will do it. Put us to the test. Sign and mail the postcard to Mr. Kidder, manager at Dayton, and do it now while it is before you.
“Very sincerely,
“The Hayner Distilling Co.,
“W. M. Playner, President.”

The circular is directed particularly to setting forth the advantages of the lock-stopper decanter mentioned in the letter, and to depicting the high quality of certain brands of whiskey manufactured at the defendant’s distillery, and commending the goods to the consumer, as “absolutely pure,” “distilled from the choicest grain,” “of the most distinguished quality,” and “guaranteed under the United States pure food and drugs act,” the text ornamented with an attractive cut of the lock-stopper decanter; but the circular is mostly in fine type and too long for insertion here.

The postcard is as follows:

“Postcard. (Stamp.)
“This side for address only.
“W. S. Kidder, Dayton, Ohio.
“Dear Sir: You may send me by prepaid ex-, press the package as per your recent proposition. It is understood that if, after trying your product, I find that it is not as represented, I am privileged to return balance by express at your expense. If the goods are as represented and I keep them I agree to remit $3.70. Remember, I bind myself only as above. .
“Name.......... Post office..........Express
“Office .......... State........If member of firm, give firm name.”

It is further shown by the record that, by force of the county local option law, the sale of intoxicating liquor as a beverage was prohibited in Knox county, Ohio, on and prior to October 11, 1909, and that Fredericktown, Ohio, is located within the boundaries of Knox county.

Upon this state of facts the question presented is whether or not an offense has been proven against the provisions of section four of the act, and whether, if such violation has been shown, the section itself is a valid law. The court has been favored by the learned counsel with very extended argument, for and against. Such argument usually invites to enlarged discussion, but it seems to us that the real, essential issues are comparatively simple, and do not require extended discussion on the part of the court, although it is' proper to briefly notice the points presented.

We assume that the act of soliciting may be done by letter as well as in person. The dictionary term “solicit” implies “an application to another for obtaining something.” It is the every-day experience of all of us that in other matters it is so done, and as there is no reason to presume that the general assembly used the word in any sense other than the ordinary sense, we give that construction to the term. We suppose, also, that the letter was intended to take effect in the county of Knox. If it was so intended then we see no reason why the prosecution was not properly commenced in that county. We call attention to the following authorities, and pass this matter without further comment. In re Palliser, 136 U. S., 257; The King v. Girdwood, 1 Leach, 142; The King v. Johnson, 7 East, 65; Commonwealth v. Blanding, 3 Pick., 304; The People v. Rathbun, 21 Wend., 509; same v. Adams, 3 Denio, 190; Foute v. The State, 15 Tenn., 712; United States v. Thayer, 209 U. S., 39; Benson v. Henkel, 198 U. S., 1; Burton v. United States, 202 U. S., 344; Rose v. The State, 4 Ga. App., 588, 62 S. E. 117.

Many points of objection to the judgments below are urged by counsel for plaintiff in error. In the first place it is contended that the statute has not been violated because the sending of one letter only is involved in this transaction while the thing forbidden by the statute is the soliciting of orders, not the solicitation of an order. It would seem that our statute, section 6794, Revised Statutes, a statute intended to do away with mere technicalities, sufficiently answers this objection. Among other like provisions relating to other subjects it provides that “words in the present include the future tense, and in the masculine include the feminine and neuter genders, and in the singular include the plural, and in the plural include the singular number.” It appears clear that unless it is manifest, as it is not in this case, that more than one solicitation is necessarily required to bring about the desired result, that is, a sale, that the statute is as well satisfied by one instance as it would be by a dozen. Authorities are abundant in support of this conclusion. We cite a few of the many: King v. Hassell, 1 Leach, 1; The State v. Main, 31 Conn., 572; Lynch v. The State, 12 O. C. C., N. S., 330, same, 81 Ohio St., 489; Belle Center v. Welsh, 24 W. L. B., 176.

It is further insisted that the statute cannot be violated unless the solicitation, if effectual, would result in an illegal sale, which could not be the result in the present case because the sale, if induced, would be made at Dayton, in the county of Montgomery, (wet territory), and not at Frederick-town, in the county of Knox, and the legislature is without authority to make solicitation of a legal sale an offense. But would the sale, if brought about, be made at Dayton? The letter specifies as an element of the solicitation, the condition that the purchaser need not send any money, but simply sign and mail the card, the terms of which authorize the shipment of the package on the condition that if the purchaser finds the product not as represented he is privileged to return balance by express at sender’s expense. Surely at this stage there is no contract of sale. But if the party solicited finds the goods as represented and he keeps them then he agrees to remit $3.70. That conclusion, and his consequent action thereon, would all be done in Knox 'county. Compliance with the condition by the purchaser would conclude a bargain, but at no stage prior to that could either party enforce any contract liability against the other. We understand the rule to be, as stated in Benjamin on Sales, (5 ed.)/319, that: “Where the buyer is by the terms bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.” Nor would there be delivery until the buyer had determined to accept, the rule being that an acceptance by the purchaser is as necessary an incident to delivery as a tender by the seller. See, generally, Bonham v. Hamilton, 66 Ohio St., 82. It is clear that, by reason of this principle, the general rule that the title to goods shipped passes to the buyer on delivery by the seller to a common carrier, has no application to this case, and that the sale, had one been induced, would have taken place' in Knox country, dry territory, and would therefore have been an illegal sale.

Nor does there seem to be support in reason, and certainly not in authority, for the proposition that the general assembly does not possess authority to forbid solicitation for orders for intoxicating liquor in dry territory, even though the sale might be had in wet territory. It would be a needless use of space to stop to set forth at length the main purpose of our temperance legislation, for the same has been given in detail in many previous decisions. We need but suggest here that one purpose is the removal and suppression of temptation to overindulgence on the part of a large class who are weak of will and likely to be controlled to their injury by the cravings of appetite. To accomplish this purpose it would seem that legislation of the character in review, reasonable in .its provisions, would afford material aid in bringing about the condition of society which the general legislation on the subject of intoxicating liquors seeks to establish. And as to authority in support of this specific provision there seems to be abundance, and that of the highest character. We call special attention to the case of Delamater v. South Dakota, 205 U. S., 93. That is a liquor case wherein Delamater was charged with soliciting in South Dakota (dry territory), a contract for the sale of liquor by a concern of another state (wet territory), in violation of the statute of South Dakota forbidding such soliciting and punishing the same as a misdemeanor. The special defense interposed was that the act was repugnant to both the law of the United States respecting interstate commerce, and the commerce clause of the constitution, and the opinion is devoted largely to a discussion of that phase of the contention, but the general subject of the validity of the South Dakota act is also discussed. The holding is that the Dakota statute is not repugnant to the act of congress respecting' commerce, nor to the commerce clause of the federal constitution; that “the general powers of the states to control and regulate, within their borders, the business of dealing in, or soliciting orders for, the purchase of intoxicating liquors is beyond question;” and that “although a state may not forbid a resident therein from ordering for his own use intoxicating liquor from another state it may forbid the carrying on within its borders of the business of soliciting orders for such liquor although such orders may only contemplate a contract resulting from acceptance in another state.” Attention is called to two Arkansas cases, which deserve notice. Carter v. The State, 81 Ark., 37, decided December 3, 1906, holds that, within the meaning of section 5133, Kirby’s Digest, making it unlawful for any person, firm, partnership, or corporation engaged in the sale of liquors to solicit orders for the sale of liquors in any place where the same is prohibited by law, an advertisement in a newspaper published in a prohibition district that' liquor may be obtained from a licensed liquor dealer doing business elsewhere, is not a solicitation. The validity of the act itself forbidding soliciting is not questioned. In the following year, to-wit, April 1, 1907, the statute was repealed and a new act of a more comprehensive character passed which is given construction in Zinn v. The State, 88 Ark., 273, the decision rendered November 30, 1908. The holding is: “A statute making it unlawful to solicit orders for intoxicating liquors in prohibition territory, through agents, circulars, posters, or newspaper advertisements, is a valid exercise of the state’s police power,” and “ * * * is not unconstitutional as infringing the power of Congress under U. S. Const., sub. 1, section 8, to establish postoffices and designating what shall be excluded from the mails.”

As the case at bar does not relate to the matter of advertising we are not called upon to discuss or consider that phase of the subject. Counsel for plaintiff in error cite State v. Wheat, 48 W. Va., 259, as sustaining their contention that soliciting in a dry county is not unlawful. The question in that case involved construction of a license statute. Wheat was licensed as a wholesale liquor dealer in Ohio county. The solicitation was by circulars mailed in that county to persons in Brooke county. Some of the reasoning of the court seems to favor the claim of counsel, but as a whole the case rests on the effect to be given to the license, and to turn largely upon the situs of the solicited sales, the opinion holding: “The code says that if one has a sale license he may solicit orders, and it seems to me that such licensee may solicit custom anywhere as an incident to that license. It would seem immaterial that the law confines the licensee to business at a particular place or one county, since the solicitation and receipt of orders are not for sale and delivery in other counties, but for sales to be executed as consummated contracts at the place and in the county designated in the license; that is the place of sale.” On the whole, the decision does not afford much aid in disposing of the contention in the case at bar. Lewis v. The State, 58 Tex. Crim., 351, is also cited. An examination of this case shows that the resemblance to our case is too faint to afford light in disposing of any of the questions which we have, or indeed to justify a fuller statement of it.

It is further contended that the act is invalid because violative of the constitution in the imposition of excessive fines. The fines prescribed are larger than in many other sections of the liquor laws, but is it shown that punishment of less amount would prove effective? We think not. The answer of counsel for the state appears to fully meet this objection. In substance it is that, as matter of common knowledge, the profit in the wholesale dealing in liquor is so great that a small fine would utterly fail to prove a deterrent, inasmuch as the dealers could easily afford to pay such fine and continue the soliciting of orders. The subject is clearly a matter of legislative discretion with which the courts should not interfere unless the punishment is so excessive as to amount to cruelty or confiscation, which clearly is not- the case here.

Further contention is made that the whole statute is unconstitutional, the first part as being a license law, and the fourth section- as being a general law not of uniform operation. It seems to us that it cannot be necessary at this late day to enter into a discussion as to whether our liquor taxing laws are license laws. The ground has been fully plowed and harrowed in many previous decisions. And section four does operate uniformly within the meaning given that requirement of the constitution as to general laws because the operation of the statute is the same in all parts of the state where the same circumstances and conditions exist. An act is not required to be of universal operation in order to be of uniform operation. To sustain this objection would be to overrule all the decisions of this court relating to local option. We regard the policy of the state in that respect as established by those decisions, and are' not disposed at this late day to disturb it.

It is further urged that section four, as construed by the courts below, would prevent mail-order houses .from using the mails for lawful purposes, in the ordinary transaction of their business, and that would be an invasion of the right of the citizen to use the mails and of the general government to receive large revenues from a business recognized by it as lawful and equally legitimate under state laws. This objection, though plausible, we think is without force. No reason is perceived why it should be any more of a hardship for the mail-order people to pay respect to the laws of the states with whose citizens they desire to deal than other people. If the section as to other objections is a valid law, and we have found that it is, it would seem that the inconvenience visited upon a few large stores here and there would hardly afford a ground for holding it invalid. As to the loss of revenue to the general government it would seem sufficient to recall the Delamater case, supra, where the decision of the highest court of the land supports the power of the states to enact just such legislation.

Objection is urged that, as construed by the courts below, the act is unreasonable and oppressive. Courts are not concerned with the question of the wisdom or the usefulness of this class of legislation. All such questions are within the exclusive province of the law-making body, the general assembly. In many counties of the state, the most we understand, a majority of the people have shown by their votes approval of such measures and the general assembly has heeded this sentiment by, from time to time, perfecting such legislation with the hope if possible of fully accomplishing the purpose designed. The courts will do their whole duty when they determine whether or not the particular act, in the provisions challenged, is or not within the competency of the law-making body, and if it be, then to give construction to the language, employed, as it is found in the statutes, and award judgment accordingly.

We are of opinion that the record shows that an offense has been committed by the plaintiff in error in violation of the fourth section of the act, and that the section thus offended against is a valid law.

The judgment of the circuit court will be

Affirmed.

Summers, C. J., Crew, Davis and Price, JJ., concur.  