One who receives apples to be distilled into brandy does not, by delivering to the original owner his portion of the product, violate a law prohibiting the sale, gift, or other dis position of intoxicating liquor ; Maxwell v. State, 120 Ala. 375, 25 South. 235.
There is a decided conflict among the cases as to the criminal and penal responsibility of, one for the violation of the liquor laws by a co-partner, agent or servant, where the sale was without the knowledge or consent or express or implied authority of the de fendant. That he is liable ; State v. Gilmore, 80 Vt. 514, 68 Atl. 658, 16 L. R. A. (N. S.) 786, 13 Ann. Cas. 321; People v. Kriesel, 136 Mich. 80, 98 N. W. 850, 4 Ann. Cas. 5; State v. Constatine, 43 Wash. 102, 86 Pac. 384, 117 Am. St. Rep. 1043 ; contra, Kittrell v. State, 89 Miss. 666, 42 South. 609; Rosenbaum v. State, 24 Ind. App. 510, 57 N. E. 156 ; Beane v. State, 72 Ark. 368, 80 S. W. 573.
Mistake as to the character of the liquor sold, under statutes where guilty knowledge or intent are not elements of the offence, is, by the prevailing rule, no defence for the seller ; he sells at his peril; Compton v. State, 95 Ala. 25, 11 South. 69 ; Byars v. City of Mt. Vernon, 77 Ill. 467; Peters v. District Court of Jefferson County, 114 Ia. 207, 86 N. W. 300 ; State v. Moulton, 52 Kan. 69, 34 Pac. 412 ; Com. v. O'Kean, 152 Mass. 584, 26 N. E. 97. Most of the cases bolding mistake of fact a defence are to be found in the Texas reports, but in that state the question is governed by a special statute ; Walker v. State, 50 Tex. Cr. R. 495, 98 S. W. 843. In Ohio the question has been passed upon with out reference to a special statute; Farrell v. State, 32 Ohio St. 456, 30 Am. Rep. 614 ; and in State v. Powell, 141 N. C. 780, 53 S. E. 515, 6 L. R. A. (N. S.) 477, the alleged mistake was pointed out to be a mistake of fact and held a sufficient defence.
That a state may, under its police power, regulate or even prohibit the manufacture and sale of intoxicating liquors is settled by many state and federal cases ; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L.
Ed. 205 ; W. A. Vandercook Co. v. Vance, 80 Fed. 786 ; Scott v. Donald, 165 U. S. 58, 17 Sup. Ct. 265, 41 L. Ed, 632. There is no in herent right of a citizen to sell intoxicating liquors by retail. It is not a privilege of a citizen of the United States. It may be en tirely prohibited, or it may be permitted un der such conditions as will limit to the ut most its evils. The regulation rests in the discretion of the governing authority ; Crow ley v. Christensen, 137 U. S. 91, 11 Sup. Ct.
13, 34 L. Ed. 620. The regulation of the sale of liquor is an essential police power of a state ; Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, 25 Sup. Ct. 552, 49 L. Ed. 925; City of Danville v. Hatcher, 101 Va. 523, 44 S. E. 723; the state may, by statute, prohibit the gift of such liquor to one visibly affected by it though the recipient be a friend and the gift made in a social manner ; Altenburg v. Corn., 126 Pa. 602, 17 Atl. 799, 4 L. R. A. 543. It may prohibit the manufacture of liquor even though intended for exportation and not for use within the state ; Pearson v. The In ternational Distillery, 72 Ia. 348, 34 N. W. 1; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346.
Statutes and ordinances making it an of fence for a minor to frequent a liquor saloon are valid ; Com. v. Price, 123 Ky. 163, 94 S. W. 32, 13 Ann. Cas. 489; State v. Baker, 50 Or. 381, 92 Pac. 1076, 13 L. R. A. (N. S.) 1040.
Prior to the fourteenth amendment, no question was raised as to this right of the states; Bartemeyer v. Iowa, 18 Wall. (U. S.) 129, 21 L. Ed. 929; it is justified by the rule that while power does not exist with the whole people to control rights which are exclusively private, government may re quire each citizen so to conduct himself and use his own property as not necessarily to injure another ; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205 ; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346.
But a state in the exercise of its police power may not interfere with commerce be tween the states ; Walling v. Michigan, 116 U. S. 446, 6 Sup. Ct. 454, 29 L. Ed. 691; and it cannot forbid the importation of toxicating liquors; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128 ; In re Rahrer, 140 U. S. 564, 11 Sup. Ct. 865, 35 L. Ed. 572 ; Donald v. Scott, 67 Fed. 854; nor can it by statute impose a tax or duty on persons who, not having their principal place of business within the state, engage in the business of selling liquors therein; Walling v. Michigan, 116 U. S. 446, 6 Sup. Ct. 454, 29 L. Ed. 691; or forbid common carriers from bringing them into the state without having been furnished with a certificate that the consignee was authorized to sell liquors ; Bowman v. Ry. Co.; 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700.