Number 4. July 13, 1967

Number 4. July 13, 1967. Hon. Quintin J. Cristy, Chairman Alcoholic Beverages Control Commis- sion Dfar Mr. Cristy: — You have requested my opinion relative to the li- censing requirements of G. L. c. 138 (the alcoholic beverages laws) con- P.D. 12 39 cerning alcoholic beverages imported through points of entry in Massachu- setts and destined to a recipient outside the Commonwealth. Your question is cast in the form of an inquiry whether the merchandise may "be cleared into Massachusetts by the United States Customs Authorities out and from any Massachusetts Port of Entry for transportation to a destination outside of this Commonwealth?" From the context of your inquiry, I gather that your essential question is whether a recipient in a state outside Massachu- setts must hold an importer's and wholesaler's license under G. L. c. 138, § 18. On the facts submitted, the recipient, whom you designate as the "con- signee," has no connection with Massachusetts other than arranging for the alcoholic beverages to be shipped from abroad to a point of entry in Massa- chusetts in a continuous movement to the out-of-state destination. Trans- portation of the alcoholic beverages through Massachusetts is done by an independent carrier, as to whom you have raised no licensing question. You indicate that the Commission is of the opinion that the consignee must be licensed under G. L. c. 1 38, § 1 8. You base your conclusion on G. L. c. 138, § 2, which provides in relevant part: "No person shall . . . import or export alcoholic beverages or alcohol, except as authorized by this chapter. . . ." (Emphasis supplied.) General Laws c. 138, § 18 provides, in relevant part: "The commission may issue to any individual who is both a citi- zen and resident of the commonwealth and to partnerships com- posed solely of such individuals, and to corporations organized under the laws of the commonwealth whereof all the directors are citizens of the United States and a majority thereof residents of the commonwealth, licenses as wholesalers and importers ( 1 ) to sell for resale to other licensees under this chapter alcoholic bev- erages manufactured by any manufacturer licensed under the provisions of section nineteen and to import alcoholic beverages into the commonwealth from holders of certificates issued under section eighteen B^'^ whose licensed premises are located in other states and foreign countries for sale to such licensees, or (2) to sell for resale wines and malt beverages so manufactured to such licensees and to import as aforesaid wines and malt beverages /o/- sale to such licensees.^' (Emphasis supplied.) Your question is answered by determining the meaning of the word "im- port" as used in i^§ 2 and 18 of G. L. c. 138. The activities as set forth above which a licensee under ^^ 1 8 may engage in are specifically enumerat- ed. It is a familiar rule of statutory construction that such a specific enumer- ation precludes other uses. Spence, Bryson Inc. v. The China Products Co., 308 Mass. 81, 88. In both of the enumerated activities under this section the term "import" is used in connection with a sale to "licensees under this chapter," all of whom have a Massachusetts location. On the other hand, the situation you describe does not contemplate a sale to any person in Mas- sachusetts but simply involves the transportation of alcoholic beverages through Massachusetts, destined for use elsewhere. Since this latter activity does not involve a sale within Massachusetts, I am of the opinion that G. L. c. 1 38, § 18 is not applicable to the consignee you describe. ^'Section 18B relates to "certificates of compliance" issued with respect to licenses granted outside the Commonwealth for sales to licensees therein. 40 P.D. 12 It, therefore, remains for me to consider whether or not the term "im- port" as used in G. L. c. 138, § 2 was intended to apply to the importation of liquor into Massachusetts destined for use in another state. The same terms used in different parts of a statute should be given the same meaning where possible so as to create harmonious legislation covering the same sub- ject matter. Having already concluded that the term "import" in § 1 8 was intended to cover only sales to licensees in Massachusetts, I am in like man- ner of the opinion that the term "import" in G. L. c. 138, § 2 should be restricted to the same kind of sales. In your request you have directed my attention to § 2 of the 2 1 st Amend- ment of the Constitution of the United States, which provides: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of in- toxicating liquors, in violation of the laws thereof, is hereby pro- hibited. (Emphasis supplied.) This Amendment does not, however, make a state's jurisdiction para- mount in all circumstances. The United States Supreme Court has indicated that a state may not prevent the transportation of liquor through its territory for use in another state. Hosteller v. Idlewild Bon Voyage Liquor Corp., 311 U.S. 324.* However, since the Legislature has used the term "import" in G. L. c. 138 only in connection with sales within the Commonwealth, no constitu- tional question is raised by the facts you have set forth. Accordingly, I am of the opinion that a consignee of the type and under the circumstances which you describe need not hold an importer's and wholesaler's license un- der G. L. c. 138, § 18. Very truly yours, Elliot L. Richardson, Attorney General