Woodruff v. Catlin. ceedings for that purpose must end in requiring each to pay the owner for the right taken for itself. The fact of such payment, in this instance, proves nothing, as to the extent of the obligation of the corporation making it, in reference to the nuisance. If, after making it in form, in obedience to the statutes, the commission should require either of the other corporations to reimburse a portion of the sum so paid, it will be neither a loan nor a gift. It is but the apportionment of the amount to be raised by the three for the common purpose of abating the nuisance, made circuitously, because the intervening rights of strangers must be respected and acquired by due process of law. If the sum set against the city should happen to exceed the cost of the necessary new highway and bridge, the excess is in no sense a gift or loan to the railroads. The city has done no more than discharge its obligation to the public; no more than pay a debt due wholly from itself; has paid nothing to or for either railroad. Each railroad when it has paid its assessment, has discharged its obligation to the public; paid all that it owed. That the debt due from the railroads is found to be less than the cost of land for new tracks, and that from the city to be more than the cost of land for new highways and bridges, is quite immaterial upon the question before us. It is a matter of payment of debts by the several corporations to the public; not of transfer of property from any one of them to any other. For, when the act in question is fully executed, the city will have received nothing, by way of loan or gift, from either railroad corporation; nor will either of the latter have received any loan or gift from the city; each one will have paid its debt to the public growing out of the wrong jointly inflicted by them upon the public. The sum assessed upon and to be paid by the city is not controlled by the cost of any particular portion of the work; but it measures the responsibility of the city for the nuisance-measures its pecuniary obligation to the public, as determined by the legislature. For this reason we think the act does not vio Woodruff v. Catlin. late the constitutional provision against municipal aid to railroads. The constitution provides that "the property of no person shall be taken for public use without just compensation therefor." In its application to the condemnation of land for railway use, the word "taken" in the constitution means the exclusion of the owner from use and possession and the actual assumption of exclusive possession by the railroad corporation at the termination and as the result of judicial proceedings. The act in question provides that "all property taken under said proceedings shall be deemed to be taken by the party for whose benefit the proceedings are had, and upon their completion and the payment of the damages appraised, the right, title and interest so taken shall, by virtue of said proceedings, vest immediately and directly in the party for whose benefit and use said condemnation is made as aforesaid, in the same manner and to the same extent as though said proceedings had been lawfully begun and prosecuted by and in the name of such party." By the combined force of this act and of the general statutes the commissioners may institute judicial proceedings which may terminate in vesting in the city and the railroad corporations severally the right to use certain specified pieces of land for railway and highway purposes, if they will pay the appraised value thereof. But the meaning of the act before us is that, after appraisal completed, actual payment of the same is to be made to the owner as a necessary prerequisite to the passing of any right to or interest in the land to the corporation-to the right to occupy or use it; to the right to remove or disturb the soil; to the right to put any structure thereon. The court would enjoin the corporation from any invasion of the owner's right of possession before payment. The enforcement of the command of the legislature upon the municipal and railroad corporations to abate the nuisance, necessitates judicial proceedings, because the land of individuals is to be taken by right of eminent domain. For this reason, for the specified purpose and to this extent, the Woodruff v. Catlin. legislature may give to its own commission standing in court to ask that land may be subjected to the use of each and may impose upon each the same obligation to obey any order of the court in this behalf and to pay the amount of the appraisal, and then to use the land for the specified purpose, as would have been upon them if they had voluntarily asked and received in their own names. This is not an imposition of an agent to ask for a binding judgment upon them in any matter of contract or right, as between either of them and an individual, or a corporation, or the state itself. It is the use, in a permissible manner, by the legislature, of the governmental power to compel each corporation to contribute to the cost of the abatement of the dangerous nuisance which it now maintains. No property is to be taken from either, no right is to be taken or even diminished; only they are to so use their rights as not to endanger public safety. Neither in seeming nor in fact does the act provide for the condemnation of land for the use or in behalf, either of the commissioners or the state. Neither the state nor the commissioners are to own any right in it; but the commissioners are empowered so to ask that all resulting acquisition of right, all resulting obligation to perform duties, make payments, and use land, are to and upon the corporations severally. The act has a single end in view-to separate the grade of the railroads from that of the highway at intersection. To accomplish this the commission is empowered to require and has required the railroads and the city severally and independently to become the owners of the right to use such separate pieces of land as may be necessary for new railways and new highways and bridges. The proceeding is in the line of this requirement. For our present purpose we have the right to assume that the commission will not change the plan adopted, and that the legislative order will continue in force against each of the three offending corporations. We should not be justified in assuming that the legislature will be unable to enforce State v. Ascher. its mandate against all and, upon that assumption, declare the act void. The Superior Court is advised that there is no error in the judgment complained of. In this opinion the other judges concurred. THE STATE vs. EDWARD ASCHER. Hartford District, October T., 1886. PARK, C. J., CARPENter, Pardee, The act of 1882 (Session Laws of 1882, ch. 107, part 6, sec. 1,) forbids all persons, without a license therefor, to sell intoxicating liquors “by sample, or by soliciting or procuring orders." Held that a contract for a sale, made in this state by a travelling agent of a firm in another state, of liquors to be delivered in such other state, is a violation of the statute. [Argued October 5th-decided November 23d, 1886.] COMPLAINT for selling intoxicating liquors; brought to a justice of the peace, and, by appeal of the defendant, to the Superior Court in Tolland County, and tried to the jury in that court, on the plea of "not guilty," before Beardsley, J. The prosecution was brought under the act of 1882, which provides that "any person who, without a license therefor, shall, by sample, by soliciting or procuring orders or otherwise, sell any spirituous or intoxicating liquors, * * * shall be fined for the first offense not more than fifty dollars," &c. The complaint charged a sale of intoxicating liquors by the defendant, "by sample, and by soliciting and procuring orders," to one Frederick Einsidel, without having a license therefor. On the trial of the case the state offered evidence to prove that in November, 1885, the accused went to Rockville, in the town of Vernon, and there, as agent of Swartz 54 299 68 341 54 299 74 537 State v. Ascher. Bros., a wholesale liquor firm in New York city, solicited Einsidel to become the purchaser of intoxicating liquors of Swartz Bros.; that by reason of such solicitation Einsidel gave the accused an order for the purchase of such liquors, and the accused forwarded the order to Swartz Bros., in New York city, and that they afterwards, pursuant to the order, delivered the liquors into the possession of Einsidel. The accused, at the time, was and still is a citizen of the state of New York, and a resident of New York city, and he claimed and testified in his own behalf that at the time he was in the employ of Swartz Bros. upon a salary, as their agent to solicit orders for the sale of intoxicating liquors, which orders were to be forwarded by him to them in New York for their approval, and if approved, to be there filled by them; and that as such agent he called on Einsidel, at Rockville, and solicited of him an order on Swartz Bros. for the intoxicating liquors in question, to be by them delivered to Einsidel, by delivering them to a common carrier in New York, directed to Einsidel at Rockville, to be transported from New York at the risk and expense of Einsidel; that, by reason of the solicitation Einsidel then gave the accused such an order for the liquors, and the accused took it and forwarded it to Swartz Bros. in New York city, and they approved it and delivered the liquors so ordered to Einsidel, by delivering them to a common carrier in New York city, directed to Einsidel at Rockville; that Einsidel paid the freight on the liquors from New York to Rockville, and in fact received the liquors, and paid Swartz Bros. therefor. Neither the accused nor Swartz Bros. were licensed to sell liquors in any town in this state. The counsel for the accused requested the court in writing to charge the jury as follows:-" The statute under which the accused is charged prohibits the sale of intoxicating liquors by sample, by soliciting or procuring orders therefor or otherwise, without a license. To constitute a sale of personal property, especially under a penal statute, there must be a transfer of title for a certain consideration. Orders for goods may be received, but until they are trans |