Overseers of the Poor of Crown Point v. Warner — 3 Hill & Den. 150

Majority

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The Overseers of the Poor of Crown Point vs. Warner.

Headnote

The words inn and tavern, and inn-holder and tavern-keeper, as used in the statute for the regulation of taverns, &c. (1 B. S., 676 etseq. 2d ed.,) are synonymous.

The right to keep an inn, in the common law sense of the term, is not a franchise; and hence, notwithstanding the statute, any person may keep such a house without a license. Per Nelson, C. J.

But if he wish the privilege of selling strong and spirituous liquors, &c., he must obtain a license; for in such case the employment is turned into a franchise by the statute.

The provisions of the statute, (1 R. S. 678, § 8, 2d ed.,) requiring every keeper of an inn or tavern to have in his house two spare beds, &c., apply only to such houses as have been licensed. Per Nelson, C. J.

So, as to other corresponding provisions of the statute prescribing rules of conduct for the keepers of inns and taverns, as such. Per Nelson, Ch. J.

To subject one to the penalty provided by § 10 of the above statute for erecting or putting up a sign, it must indicate that he keeps a public house licensed to sell liquors, &c.

Where a sign was posted in front of a house, on which was painted “ S. W’s Entertainment," and a piece of pasteboard was affixed to the same post inscribed “ TemperanceHeld, not such an indication that the occupant of the house kept a tavern, as would fender him liable for the penalty given by 1 E, S. 678, § 10, 2 d ed.

Error to the Essex C. P. Newell and Davis, overseers of the poor of the town of Crown Point, sued Warner before a justice of the peace, and declared in debt for the penalty given by 1 R. S. 6.79, § 10—(p. 678, 2d ed.,)—alleging that on, &c., the said

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Warner did, contrary to the statute, &c., erect and put up a sign indicating that he kept a tavern ; and that he had continued to keep up such sign every day from, &c., to, &c. : whereby, &c. The summons was issued on the 2d of January, 1838. After issue joined and a trial had before the justice, judgment was rendered in favor of the plaintiffs for $42,50. The defendant appealed to the common pleas, and on the trial in that court the following facts appeared. On the 9th of November, 1837, the defendant, without having obtained a tavern license, posted a sign in front of his house, on which was painted in large letters “ Samuel Warner’s Inn.” A day or two after-wards a piece of pasteboard was affixed to the post a few feet below the other sign, inscribed in capital letters, “ Temperance.” These remained a few days, when the defendant substituted the word <£ Entertainment” in the place of££ Inn.” The signs continued thus till the commencement of the suit. There were large barns and sheds contiguous to the defendant’s house, and people were in the habit of calling there for refreshment, for which they were charged the prices usually taken at country taverns. The defendant contended that the plaintiffs could only recover at the rate of $1,25 per day from the 9th of November to the period when the word ££ Entertainment” was substituted for ££ Inn•’’ and the plaintiffs insisted that they were entitled to a verdict for the penalty for each day intermediate the erection of the first sign and the commencement of the suit before the justice. The court below decided that the word ££ Entertainment” did not indicate that the defendant kept a tavern; to which decision the plaintiffs excepted. The jury rendered a verdict of $5 for the plaintiffs, who, after .judgment, sued out a writ of error.

A. C. Hand,

for the plaintiffs in error, insisted that the sign in question—Samuel Warner’s Entertainment—clearly indicated that the defendant kept a tavern, and that the judgment of the court below should therefore be reversed.

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J. Burnet,

for the defendant in error. The penalty for which this action was brought is given by 1 R. S. 679, § 10, and it will be seen that only the word tavern,—not inn or tavern —is used in that section. To bring the case within the statute, therefore, the sign erected by the defendant must be shown to have indicated, not merely that he kept an inn, but a tavern. That the words are not synonymous, see Bailey's Dictionary, where u Inn" is defined to be “ a public house for the entertainment of travellers,” and u Tavern—a house where wine is sold.” The definitions given by Johnson are nearly in the same words. It has been laid down that, “ every inn is not an alehouse, nor every alehouse an inn; but if an inn uses common selling of ale, it is then also an alehouse ; and if an alehouse lodges and entertains travellers, it is also an inn.” (2 Toml. Law. Dict. tit. “ Inns & Innkeepers.") We contend therefore, that no house can with propriety be called a tavern. except it be one where liquors are sold $ and although the word “ Inn" may indicate such a house, yet, as in this case the word 11 Temperance" was also affixed to the sign post, it is certain that no one could mistake the building for a tavern. This is clear when we take into consideration the fact that, for years past, temperance, in its ordinary acceptation, has been understood to mean entire abstinence from the use of all intoxicating drinks.

It may be urged that in other sections of the statute, the words inn and tavern are used synonymously ; but we submit, that, as the statute has not defined these terms, they are to be construed according to their respective significations in approved lexicons. Again : as both words are used in the statute, it is to be presumed they were employed in different senses; for if inn and tavern mean the same thing, only one of them would be necessary, and the use of the other superfluous. .

If there be any doubt in the case, the legal intendment should be in favor of the defendant; inasmuch as the prosecution is-under a, penal statute.

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Hand, in reply. The fact that the sign was in front of a house where the public were entertained, contiguous to which were large barns and sheds, was enough to induce travellers to suppose that the building was a tavern—a place where guests were accommodated and liquors furnished. The word entertainment is no less significant than tavern, and is as commonly used to denote a place where liquors are sold. Entertainment is defined by Webster, “ 1. The receiving and accommodating of guests, either with or without reward; 2. Provisions of the table; hence also, a feast; a superb dinner or supper.” And in Thompson v. Lacy, (2 Barn, Aid. 283, 286,) Bayley, J. speaks of a tavern keeper as one who furnishes a table, &c. According to this view, the defendant adopted the very term which of all others, except the word tavern itself, indicated that he kept a house where liquors were sold. The word “ Temperance” did not change the character of the sign any more than if Tavern instead of “ Entertainment” had been substituted for “ Inn.”

But the opposite counsel seems to concede that the word “ Entertainment” on the sign sufficiently indicated that the defendant kept an inn, though not a tavern; and lexicons have been resorted to in support of the latter distinction. We submit however, that inn and tavern are synonymous ; and in this we are sustained by the etymology of the words. Webster defines a tavern thus : “ Tavern, [Fr. taverne ; W. tavarn ; L. taberna.] A house licensed to sell liquors in small quantities, to be drank on the spot. In some of the United States, tavern is synonymous with inn or hotel, and denotes a house for the entertainment of travellers, as well as for the sale of liquors, licensed for that purpose.” Taverne and tavarn are no doubt derived from the latin word taberna, the general meaning of which is, “ any house made of boards,” See.; but, according to Ainsworth, i< may be translated 11 a tavern or inn.” Though the word tavern may have been restricted in its meaning in early times, it is certainly not so now ; nor was there ever any war rant for such restriction in the derivation of the word. True

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it was said in Calye’s case, (8 Rep. 63,4,) that “ the latin word for an inn, is diversorium but that means no more than taberna diversoria which, by dropping the last word, is easily anglicised tavern. Again: the words are used in the statute to signify the same thing. Both are sometimes employed in connection j but the context will show that, even in such cases, they are used synonymously. Besides, the word tavern is frequently found in the statute where inn should have been used, if the argument of the defendant’s counsel be well found ed; and vice versa. (See 1 R. S. 678, 9, § 4, 6—10 ; see also id. p. 680, 681, § 12, 17, 18.) It is also submitted, that the use of these terms in courts of law, shows that they are synonymous* Inn is the word generally found in the books j and forms a distinct head or branch of the law. Tavern does not. In the English books the general division is into inns and alehouses, and it is possible that the definition of the former was once quite limited; (See Calye’s case, 8 Rep. 63, and the form of the writ in F. N. B. 94 ;) but it is not so now. An inn is “ a house where the traveller is furnished with every thing which he has occasion for whilst upon his wray”—(Per Bayley, J. in Thompson v. Lacy, 3 Barn. & Ald. 283, 6,)—“ a house kept open publicly for the lodging and entertainment of travellers generally, for a reasonable compensation*” (Hilliard’s Elements of the Law, 101 ; 2 Kent’s Com. 595.) And in Thompson v. Lacy, a house of public entertainment in London called the “Globe Tavern & Coffee House,” where beds and provisions were furnished, was considered an inn. Abbot, Ch. J. thought it like an inn in the country ; and the whole case goes to show that the distinction bptween an inn, a coffee-house and tavern, particularly in the country, is practically abolished. Petersdorff says of the keeping of alehouses and inns, that “ these occupations have, in modern times, been generally united.” (10 Petersd. Abr., 615, note ; 1 id. 453, note ; And see James v. Osborn, 2 Chit. Rep. 484 ; 1 Bl. Com. by Chitty, 430, note (19) ; 2 Toml. Law Diet. 201, tit. “ Inns and Innkeepers.”) In popular language,

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in this country, inn and tavern are synonymous, whatever may have been the technical meaning of tavern in Dr. Johnson’s day, who probably defined the word with reference to the sense in which it was used in London. Our lexicographers and legislators certainly use the words synonymously ; (See Webster’s Diet, and R. S., cited supra ; and also 1 Laws of 1801, Webster’s ed., p. 484 ; 1 R. L. of 1813, p. 176 ;) and probably not one in a thousand of the American people ever supposed there was any difference. In England too it would seem that three centuries ago, if we may judge from the language of the hero of Gadshill, these words were employed quite indiscriminately ; or he would not have said of the place where he used two gallons of sack to one halfpenny-worth of bread :

“ Shall I not take mine ease in mine inn ?”

So even in King James’ time ; as appears by the translation of Acts, ch. 28 v. 15—<£ they (thebrethren) came to meet us as far as Appii Forum, and the Three Taverns.” (Gr. Trion Tabernon ; Lat. of old válgate, Tres Tabernas.) Robinson, in the first edition of his lexicon of the New Testament, says these words mean “ the three inns but in his second edition, “ the three taverns.” (Tit.£( Tabernai.”) And see his quotations from Zosimus, and from Cic. Ep. to Att. in his second edition under the same head, by which it would seem they were called££ the three eating houses” and££ three taverns.” See also Rob. Calmet, Art. u Appii Forum,” p. 83, where it is said—“ So that probably the chief number of Christians waited for Paul at this place as a place of refreshment.” In Kuinoel’s Comm, on The New Testament, the three taverns mentioned in Acts, ch. 28 v. 15, are spoken of as a place on the Appian Way at which travellers might turn aside and refresh themselves with wine and food,—■ almost the exact definition of an inn, as given in Calye’s case.

But the construction we contend for is sustained by referring to the obvious intent of the legislature; and if this be established, it supersedes all speculation as to the etymology and early technical use of the words." Two objects were sought

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to be attained by the statute. The one was revenue; and the other, to place these establishments under good police regulations. No one can read the present statute, or that of 1801, without being convinced of the former object. And as to the latter, it is equally clear. Hence, both in England and in this country the keeper must be licensed ; (10 Petersd. Abr. 620, note ;) and, as well our old statute of 1801, as the present, require bonds and impose restrictions. It was intended that no one should keep a public house of such a description without a sign, and that no sign should be erected unless the person had obtained a license j in short, that whoever engaged in the business should do it openly, pay the duty and give a bond for good conduct, See.$ (See Vaughan, 355.) Nor was it ever intended that these requirements might be evaded by a mere trick of words, like that resorted to in this case.

We submit finally, that the device on a sign is matter of caprice or whim ; and that every thing and any thing inducing the traveller to suppose that he may enter and enjoy the privileges of a guest, in a public house, is a sufficient indication that the host keeps a tavern.

It is provided by 1 R. S. 679 § 10 (p. 678, 2d ed.,) that££ no person who has not at the time a license to sell strong or spirituous liquors, or wines, to be drank in his house, shall erect or put up any sign indicating that he keeps a tavern ; and whoever offends against this provision, shall forfeit one dollar and twenty-five cents for every day such sign shall be so kept up.” It is clear that throughout this statute regulating taverns and groceries, the terms inn and tavern, and inn-holder and tavern-keeper are used synonymously ; as the phraseology “ no inn-holder or tavern-keeper,” and <c every inn-holder and tavern-keeper,” and £< every keeper of an inn or tavern” runs through the various sections of the act. The same remark is also applicable to many of the English statutes. (1 Hawk. P. C. 714, 715, Cur. ed. of 1834.) Such also, beyond all doubt, is the common under

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standing of these terms. There may have been a slight difference at an early day ; but it is impossible to discover that any was intended by the framers of the statute. An inn and a tav-ern are both houses of public entertainment. The question in the case is, whether or not the sign erected and kept up by the defendant in front of his dwelling, indicated to the public that he kept a house of this character, within the meaning of the statute. These establishments, as houses for public accommodation, were well known at the common law, where we not only find a full description of the particular employment of an inn-keeper, but also many rules and regulations almost peculiar to that species of occupation. It is laid down that “ a person who makes it his business to entertain travellers and passengers and provide lodging and necessaries for them, their horses and attendants, is a common inn-keeper;^[2] and it is no way material whether he have any sign before his door or not.” (Bac. Air. tit. Inns <§• Inn-keepers, (B). ) So, it is said that, though it be the entertaining of passengers that makes a man an inn-keeper, yet, if a person, having put up a sign before his door, afterwards pull it down, he thereby discharges himself of the burden of an innkeeper ; but if, after he takes it down, he continue to entertain travellers, it is as much a common inn as before. (Id. ; Palm. 374 ; Godb. 346 ; Parkhouse v. Forster, 5 Mod. 428 ; Parker v. Flint, 12 id. 254.) It is said also, that “ every inn is not an alehouse, nor every alehouse an inn; but if an inn uses common selling of ale, it is then also an alehouse ; and if an alehouse lodges and entertains travellers, it is also an inn.” (1 Burn’s Just. tit. Alehouses, I.) But, at common law, any person may erect an inn for the public accommodation, without a license; as the keeping of it is not a franchise, but a lawful trade open to every citizen. (Bac. Air. tit. Inns & Innkeepers (A). ) So, I apprehend, it is in this state, as far as it regards the keeping of these houses in the common law sense of the

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term. The statute turns the employment into a franchise, only when it is sought to annex to the occupation the privilege of selling “ strong and spirituous liquors and wines to be drank in their houses.” This is the only license granted to the keepers of inns or taverns, or which the statute makes necessary. It provides, (1 R. S. 677 § 4, 2d ed.,) that “ the commissioners shall have power to grant licenses to keepers of inns and taverns fyc., to sell strong and spirituous liquors,” fyc. ; thereby clearly implying the existence of these houses and of this species of employment, already in common use. No license is necessary to authorize the business of keeping a tavern—the right to do so being common to all citizens—but if the keeper desire to annex to the employment the privilege of selling spirituous liquors or wines, a license must be obtained.

The argument for the plaintiffs in error goes, in effect, this length, viz : That no house of public entertainment can be kept in the state without taking out a license to sell spirituous liquors, &c. which, I apprehend, is altogether a mistake. The only effect of the excise laws is to forbid the sale of such liquors in the course of this employment, to guests or others, without license. It is true, the act requires that every keeper of an inn or tavern shall keep two spare beds for his guests, sufficient stabling, provender, hay, pasturage, &c.; (1 R. S. 678, § 8, 2d ed.,) but this and all the other corresponding sections in the act refer to such houses as are licensed, and to those only.

The ninth section requires that the keeper shall, within thirty days after obtaining his license, put up a proper sign, &c., indicating in some way that he keeps a tavern • and then follows the section in question, (§ 10,) forbidding any person who has not at the time a license to sell spirituous liquors, &c., to put up a sign indicating that he keeps a tavern—meaning, obviously enough, a public house duly licensed within the act. As the sign in this case held out no such indication, the court

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below were right in deciding that it did not fall within the prohibition of the statute.

Judgment affirmed.^[2]

(a) (a) As to the meaning of the terms “ house of entertainment”—“ tavern”— “ordinary”—“place of public resort”—“public place" &c., see "Wortham v. Comm'th, (5 Hand. 669 ;) Linkous v. Comm'th, (9 Leigh’s Rep. 608.)

Footnotes

(a) (a) See Story on Bailm. § 475.