O'Rourke v. People

The plaintiff in error,' O’Rourke, was indicted for unlawfully selling strong and spirituous liquors,, wines, ale and beer, in quantities less than five gallons, by retail, to be drank in his house. The proof was that he kept a saloon, and sold ale on draught to be drank on the premises. He was convicted on the indictment, and was sentenced by the court to pay a fine of fifty dollars, and to stand committed until the fine was paid. Thereupon he sued out a writ of error to this court.

By way of justification and defense, the plaintiff in error offered in evidence a license granted to him by the board of commissioners of excise in and for the village in which he conducted his business of saloon keeping, covering the time laid in the indictment for the commission of the offense, to wit: February, 1874; by which license he was authorized “ to sell and dispose of strong and spiritous liquors, wine, ale and leer, in quantities less than five gallons,” at his saloon. The license did not, in terms, allow the drinking of the liquors, wine,- ale and beer on the premises; nor did it declare that such license should not be deemed to authorize the same “ to be drank in the house.”^[26] The court held that such license afforded no justification or protection to the defendant, and excluded the evidence. The question is, therefore, whether this ruling was correct in law.

The examination of this case involves the construction of three legislative acts, now constituting the excise system of the State. The first was adopted in 1857;^[25] the second, amendatory thereof, passed in 1869;^[21] the third,^[22] after making some general provisions, adopted the act of 1857, in so far as its provisions were not incon

It may be well, first, to note the provisions of the Law of 1857, before it was amended by the act of 1869. The Law of 1857, as originally passed, provided for two kinds of licenses,^[26] one to be granted to keepers of inns, taverns or hotels; the other to persons denominated “ store-keepers.” The former were to be allowed to sell intoxicating drinks in quantities less than five gallons, to be drank on the premises. The latter were to be allowed to sell by small measure also, but not to be drank in the shop, house, outhouse, yard, or garden of the licensee. To these two classes of persons, and to none other, could licenses be granted under the original law. Then came the amendatory act of 1869, which in no way affected the subject as to inn, tavern, or hotel keepers, but authorized the licensing of persons, in the discretion of the commissioners of excise, to sell “ ale or beer,” without, however, making an expression on the subject whether such beverages might or might not be drank on the premises of the licensee. This section reads as follows: “ All the provisions of this act, as amended, shall be held to apply to the sale of ale or beer, except so much thereof as forbids the granting of licenses to any person, except to such persons as propose to keep an inn, tavern or hotel; and the commissioners of excise may, in their discretion, grant license for the sale of ale or beer for a sum not less than ten dollars to other than those who propose to keep an inn, tavern or hotel.” This amendment, as will be observed, provided for the licensing of a third class of persons; and thereafter, there were three classes of persons to whom licenses might be granted, to wit: inn, tavern, or hotel keepers, store-keepers, and such others as might be especially licensed to sell “ ale or beer.” Then came the act of 1870, which restated in general terms to whom licenses might thereafter be granted, and adopted the act of 1857 (as amended of course), wherein were prescribed the qualifications and restrictions attached to the power of the board, as to the granting of licenses; and also as to the right of sale by licensees. The act of 1870 omitted store-Jceepers, under that

We must now recur to the provisions of the act of 1857, in order to determine the restrictions which attached to the authority of the board of excise to license; or, in other words, what rights of sale the board had the power by law to confer on licensees.

1st. As regards inn, tavern or hotel keepers, there is no question here raised. They might be licensed to sell intoxicating drinks by small measure to be drank on the premises, subject to certain conditions and restrictions particularly specified in the act.^[26] But, as above stated, no question is here raised affecting the rights of persons licensed to keep inns, taverns and hotels.

2d. So, too, the board of excise could grant license to any person or persons, in their discretion, to sell by small measure, but not to be drank on the premises of the licensee.

The qualifications of this class of licensees are declared in the act of 1870; and the fee for license to them should not be less than thirty, nor more than one hundred and fifty dollars. Under such license the licensee would be authorized to sell ale and beer, because within the signification of strong liquors,^[25] Besides, ale and beer are specifically designated in the act. The condition or limitation which the law attaches to this class, is, that the licensees shall not be allowed to sell, to be drank on the premises.. This restriction is imposed by the provisions of the Law of 1857. It is claimed (but as I think, without basis of support), that such restriction does not exist since the passage of the act of 1870; that no such limitation is declared in that act; and that the provisions of restriction contained in the Law of 1857, are in conflict therewith. The question then arises, are the provisions of the Law of 1857, which prohibit the granting of licenses for the sale of intoxicating drinks by small measure, to be drank on the premises, to others than inn, tavern, and hotel r keepers, and to persons especially licensed to sell ale and beer . only, in conflict or inconsistent with the general provision in ■ the Law of 1870? Let us consider this subject by bringing the two provisions together. The Law of 1870 provides that the board of excise “shall have power to grant licenses to any

Particular note has not been above taken of the Law of 1869, which will now receive attention.

3d. There is also another class of licensees : persons who may be ’ licensed to sell “ ale or beer ” under the Law of 1869, amendatory of the act of 1857. For license to sell such beverage only, the fee is in the discretion of the board, not however to be less than ten dollars. Can this class of licensees sell such beverages by small measure to be drank on the premises % The law does not give this right in express terms, but I am inclined to the opinion that it

The first section which bears on this subject, in the act of 1857, is section 6. Insert the necessary exception, and this section will read as follows: “ Licenses shall not be granted to any person to sell strong and spirituous liquors and wines, except ale or beer, to be drank on the premises of the persons licensed,” etc.; and close the section with an express power to grant licenses to sell ale or beer to any person, in the discretion of the board.^[26] The next section requiring an exception, is section 11. With the exception inserted, it will read as follows: “ In all' licenses that may be 8 granted to sell strong or spirituous liquors or wines, in quantities less than five gallons (except to inn, tavern or hotel keepers, and except also to persons to sell ale or beer), there shall be inserted an express declaration, that such license shall not be deemed to authorize the sale of any strong or spirituous liquors or wine, to be drank in the house or shop of the person receiving such license, or in any out-house, yard or garden appertaining thereto, or connected therewith. With the proper exceptions inserted in the next section requiring it, being section 14, it will read thus: “ Whoever shall sell any strong or spirituous liquors or wines, except ale or beer, to be drank in his house or shop, * * * without having obtained a license therefor as an inn, tavern or hotel keeper, shall forfeit fifty dollars for each offense.”

The important question in the case arises on the ruling of the court, rejecting the license offered in evidence, granting to the plaintiff leave “ to sell and dispose of * * ale and beer, in quantities less than five gallons, at his saloon.” The only sale proved on the trial to sustain the conviction, was of ale at the plaintiff’s saloon, which had been drank on his premises. The court held that no power existed to grant a license giving the plaintiff the right to sell ale and beer to be drank at his saloon, and that the license in question afforded him no protection. The precise point is therefore presented,' whether the board of excise had power, under the various statutes now in force regulating the sale of intoxicating liquors, to grant a license to a saloon keeper to sell ale and beer to be drank on his premises.

The act of 1857^[25] gave the “ power to grant licenses to keepers of inns, taverns and hotels * * to sell strong and spirituous liquors and wines to be drank in their houses, respectively; and to store-keepers * * a license to sell such liquors and wines in quantities less than five gallons, but not to be drank in their shops.” etc.^[21] It then prohibited granting a license “ to any person to sell strong and spirituous liquors and wines to be drank on the premises of the person licensed, unless such person proposed to keep an inn, tavern or hotel.”^[22] It also required that “ in all licenses granted (excepting to inn, tavern or hotel keepers) to sell strong or spirituous liquors or wines, in quantities less than five gallons, there shall be inserted an express declaration that such license shall not be deemed to authorize the sale of any strong or spirituous liquor or wine, to be drank in the house or shop of the person receiving such license.”^[23] It further provided that “ such licenses ” [to others than hotel keepers] “ shall not be granted * * until such applicant shall have executed a bond * * with sufficient sureties * * conditioned that he will not. sell, or suffer to be sold, any strong'

It will be observed that under the act of 1857, there was full power to grant licenses to hotel keepers to sell strong and spirituous liquors, including ale and beer, to be drank on their premises, and full power to grant licenses to all other persons (possessing of course the statutory qualifications) to sell liquors, including ale and beer, by the measure, in quantities less than five gallons, with the simple condition annexed, that the liquors could not be drank at the place: of sale. The hotel keepers accordingly secured the monopoly, of selling liquor, including ale and beer, as a beverage. This condition of affairs caused loud complaints on the part of the keepers of saloons and boarding-houses, who made repeated efforts to induce the legislature to grant them the same privileges held by the keepers of hotels. The act of 1869^[23] was finally passed in answer to these complaints and petitions, and was manifestly intended to enlarge the rights of the petitioners. It amended the act of 1857 in several particulars not material to our present pur

But if the act of 1869 be regarded as equivocal or ambiguous, it is incumbent on the court, in searching for its proper interpretation, to refer to the state of the law upon the matter involved prior to its enactment; to consider the purpose .or object had in view in its adoption; and, if possible, to give it some practical effect. “ The interpretation which renders a statute inoperative cannot be admitted; it is an absurdity to suppose that after it is reduced to terms it means nothing.”^[25] This, however, is the necessary result of the construction adopted in the court below. As before remarked, the board of excise had full power under the act of. 1857 to grant, licenses to all persons, in their discretion, to sell liquors, including ale and beer, for any other purpose than to be drank on their premises; and unless the amendment of 1869 gave

There is no difficulty in adjusting any apparent incongruity „ between sections 11, 12 and 14 of the act of 1857 and the amendment of 1869, as the special license to sell ale and beer given in the latter act, must be regarded as an additional exception to the provisions' of the former. But if the two statutes were inconsistent and irreconcilable, the former would yield to the latter as the latest expression of the legislative will; and all portions of the original statute which were repugnant to the new act, would be regarded as repealed. • It follows that full power was conferred by the amendment of 1869 upon the board of excise to grant the plaintiff a license to sell ale and beer to be drank in his saloon, and that the license offered in evidence on its face was valid, and a legal defense to the indictment. It is hardly necessary to add that the license would have afforded „no protection to the plaintiff for the sale of any other liquors than ale or beer to be drank on his premises. Indeed, prior to 1870, it would have been necessary to have obtained a special license to sell ale and beer, to have secured protection under the amendment of 1869, but since the act of 1870, the leave to sell ale and beer to be drank on the premises, may be included in the general license.^[26] There is no force in the objection that the license was unauthorized because there was no petition of freeholders, or compliance with the other requirements of section 6 of the act of 1857, in relation to hotel licenses; as they have no application to licenses of this character, although those provisions are doubtless still in force, and must be observed in all cases where the applicant for a license “ proposes to keep an inn, tavern or hotel.” It does not appear whether the plaintiff complied with all the provisions of the statute applicable to this case, and no question of this kind was raised on the trial. The evidence was rejected, and