Opinion
(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The right to sell property is one of the incidents of ownership and should not be withdrawn or restricted unless clearly required by statute; and construing together the laws relative to prohibition, chapter 71, Extra Session of the Legislature of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.
CRIMINAL ACTION charging defendant with selling cider contrary to law, tried before Allen, J., and a jury, at Fall Term, 1916, of WILSON. (974)
Attorney-General Bickett and Assistant Attorney-General Calvert for the State.
No counsel for defendants.
CLARK, C. J., dissenting.
The jury rendered a special verdict as follows:
"We, the jury impaneled to try this case, return to the court our verdict: That the defendant J. T. Williams, agent of M. T. Williams, sold for gain, in the town of Wilson, on or about the 15th day of September, 1916, to persons to the jurors unknown, and on divers other occasions, apple cider containing 4.7 per cent of alcohol. The cider so sold was manufactured by M. T. Williams from fruits grown on the 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 the place of manufacture, that is, on the lands of M. T. Williams. If the court is of the opinion that the defendant is guilty upon this verdict, we find the defendant guilty; but if the court is of the opinion that the defendant is not guilty upon this verdict, we find the defendant not guilty."
And on such findings, the court being of opinion that defendant was not guilty of any offense, verdict was entered accordingly, defendant discharged, and the State appealed.
The statutes controlling the question in this State have not, thus far, prohibited the sale of "cider in any quantity by the manufacturer from fruits grown on his own lands within the State of North Carolina." This exception, contained in the Laws of 1908, Extra Session, chapter 71, appears in the same or substantially similar terms in chapter 35, Laws 1911, sec. 3, the same being entitled "An act to prohibit the sale of near-beer, beerine, and other like drinks," and chapter 44, Laws 1913, commonly known as the Search and Seizure Laws, excepts from the operative section of the act "wines and ciders in any quantity manufactured from fruits grown on the premises of the person in whose possession they may be." Chapter 97, Laws 1915, was passed primarily to regulate the shipments of spiritous, vinous, or malt liquors, and seems to contain no provision applicable to the facts of this record. It thus appears to be the policy and express purpose of our legislators to except from the operation of the prohibition laws the sale of cider by the manufacturer, when made from, fruits grown upon his lands within the State, "and being allowed to sell in any quantity and in any place," it is the evident purpose and meaning of the law that such sales may be effected by any of the 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 the incidents of ownership, and should not be withdrawn or (975) restricted unless the 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.