Benson v. Moore & Brundydge — 15 Wend. 260

Majority

p. 260

Benson vs. Moore & Brundydge, Overseers of the poor of Neversink.

Headnote

A licence to a tavern-keeper does not authorize the sale of spirituous liquor as a grocer.

Jt seems, that a person having both a tavern licence and a grocer’s licence, cannot sell spirituous liquors in quantities less than five gallons, whether to be drank in the house of such person or elsewhere, without subjecting himself to a penalty.

Error from the Sullivan common pleas. The overseers of the poor of Neversink sued Benson in a justice’s court, and claimed to recover a penalty of $25 for selling spirituous liquor as a grocer, without licence ; and proved the sale of a gallon of rum at several times, to several persons, which they took and carried away from the house of the defendant. The defendant produced a licence as a tavern-keeper, authorizing him to sell strong and spirituous liquors, to be drank at Ms dwelling-house. The licence did. not contain the declaration required by statute, 1 R. S. 680, §12, to be inserted in licences granted to grocers, that such licence shall not be deemed to authorize the sale of any liquor to be drank in the house, &fc. of the person receiving the licence. The justice rendered judgment against the overseers, who removed the case into the Sullivan common pleas by certiorari, where the justice’s judgment was reversed. Benson thereupon.sued out a writ of error.

P. F. JAunn, for plaintiff in error,

A. C. Niven, for defendants in error.

By the Court,

The only question in this case is, whether a person who has obtained a licence to keep an inn or tavern, has the right to sell spirituous liquor, by the gallon, to be carried away and drank elsewhere, in. the same manner as though he had been licenced as a grocer. I think he has no such right. The statute plainly provides for two

p. 261

kinds of licences; the one to inn-keepers, and the other to grocers. The first gives the right to sell liquor “ to be drank in their houses;” and the second, to sell liquor “ not to be drank in their shops, out-houses, yards or gardens.” § 4. The licences are different in form, and are granted under different circumstances, <§> 6, 7, 13, 13. The penalties for selling as a grocer, or as an inn-keeper, although they are the same in amount, are given by different sections. <§> 15, 16. The licence granted to Benson, in pursuance of the statute, was, in terms, a licence to sell liquor “ to be drank in his dwelling-house,” and did not confer authority to sell liquor to be drank elsewhere. The different sections taken together (§ 4, 15,16,) contain a prohibition against selling ardent spirits in quantities less than five gallons, in any form or under any circumstances, without a licence. The statute then provides for two different kinds of licences; the one authorizing sales as an inn-keeper, and the other as a grocer. Benson is sued for selling as a grocer, and it turns out upon the proof that he has no licence to sell in that manner. He has consequently incurred the penalty which the law has imposed for that act.

When the 15th section is read in connection with the 12th, 13th and 16th, it will admit of no other construction than that of giving a penalty for selling asa grocer, “ without having a licence therefor.” He must have permission to sell in that particular manner; and it is in vain to say that this is included in a licence to do something else. .

I think it may be doubted whether a person who has both forms of licence, can, at the same time and place, be both an inn-keeper and a grocer. As an inn-keeper, he may sell liquor to he drank in his house; but before he can obtain a licence as a grocer, he must execute a bond to the people in the penal sum of ¡$125, with a condition, among other things, that he will not sell any liquor to be drank in his house. But it is unnecessary to decide this point.

Judgment affirmed.