LIQUOR LAWS-WHO IS A "DEALER."

STANDFORD v. STATE.

[16 Tex. (App.) 331.]

In the Court of Appeals of Texas, 1884.

1. A Single Sale of intoxicating liquors does not of itself constitute pursuing or following the occupation of a liquor dealer within the purview of the Penal Code.

2. It is not the Sale, but the following of the occupation of selling of intoxicating liquors without having first obtained license, that is the gravaman of the offense.

APPEAL from the County Court of Bosque. Tried below before the Hon. R. G. CHILDRESS, County Judge.

The information charged the unlicensed sale of intoxicating liquors in quantities of one quart. The appellant was convicted and fined in

the sum of three hundred dollars.

An agreed statement of facts disclosed that appellant was a farmer residing in Coryell County; that he had never followed the occupation of selling liquor; that, on the day alleged in the information, he sold four bottles of medicated bitters; that said bitters was an intoxicant when drunk in sufficient quantities, and that the proper authorties had levied a tax for following the occupation of selling intoxicating liquors in Bosque County.

J. H. Burts, Assistant Attorney-General, for the State.

WILLSON, Judge. Defendant was convicted upon an information charging him with pursuing the occupation of selling intoxicating liquors in quantities of one quart, without first obtaining a license therefor, said occupation being taxable, etc. The evidence proved that he sold four bottles of medicated bitters on the same day, and had never sold, or offered to sell, any other liquors within the knowledge of the witnesses; that the bitters sold were intoxicating liquors; that defendant resided in Coryell County, and was by occupation a farmer.

The court charged the jury, in effect, that the defendant had violated the law; that a single sale of intoxicating liquors constituted the offense charged. We think this was error. This information is brought under article 110 of the Penal Code, which reads: "Any person shall pursue or follow any occupation, calling or profession, or do any act taxable by law, without first obtaining a license therefor, shall be fined," etc. A single sale of intoxicating liquors would not of itself constitute pursuing or following the occupation of a liquor dealer. "Occupation" as used in this statute, and as understood commonly, would signify vocation, calling, trade; the business which one principally engages in to procure a living or obtain wealth. It is not the sale

of the liquor that constitutes this offense. It is the engaging in the business of selling without paying the occupation tax. It does not require even a single sale to constitute the offense, for a person may engage in the business without succeeding in it even to the extent of one sale. So, on the other hand, a person may make occasional sales of liquor without pursuing or following, or intending to pursue or follow the occupation of selling liquor. We think the charge of the court was manifestly wrong, and we are furthermore of the opinion that the evidence fails to show that the defendant did unlawfully pursue the occupation of selling intoxicating liquors as charged in the information.1

If, however, on another trial, facts are proved which tend to show that the defendant had engaged in the business or occupation of selling medicated bitters, the court should submit that question to the jury, to be determined by them from all the evidence in the case. It is a question of fact, and not a question of law, as to what constitutes the pursuing or following an occupation.

Because the court erred in its charge to the jury, and because the evidence does not support the verdict, the judgment is reversed and the cause is remanded.

Reversed and remanded.

KEEPING OF LIQUORS BY CLUB FOR USE OF MEMBERS ONLY.

COMMONWEALTH v. POMPHRET.

[137 Mass. 564.]

In the Supreme Judicial Court of Massachusetts, 1884.

A Club of Men bona fide Buy and Own in common a stock of liquors, which is deliv. ered by their steward only to actual members upon receipt of checks previously obtained from him at five cents each. Held, that the steward is not indictable for unlaw. fully keeping liquors with intent to sell.

Complaint for unlawfully keeping liquor with intent to sell. Defendant was a member of a club of about one hundred and fifty persons, which was organized several weeks before the seizure, for the purpose of furnishing its members with refreshments. The club had the usual officers, and employed defendant as steward, paying a certain sum per month for his services and for the use of the room where the liquors were found. Each member upon joining the club paid an admission

1 See Acts 17th Leg. 21-112; La Norris v. State, 13 Tex. (App.) 313.

fee of $1, and received a certificate of membership. The money so obtained was used in buying a variety of liquors in the name and as the property of the club. Checks were printed, each representing five cents, and the steward was required to furnish these checks to members in such numbers as they were called for, at the rate of five cents each. The steward took care of the liquors of the club, delivered them to members as called for and received the price in checks. The liquors seized were the property of the club, obtained and designed to be used under the above arrangement, and were in his custody as steward.

At the trial below, defendant asked the court to rule that there was no evidence to warrant a conviction. The court declined so to rule, but instructed the jury that, "if an association of persons, of whom the defendant was one, owned a quantity of intoxicating liquors which they kept under an arrangement to furnish them in such quantities as might be required, to be drunk on the premises, to such members of the association as should call for them in return for checks which represented certain designated values, and which were obtained from the defendant as a steward of the association, and were paid for, when obtained, at a price which they purported to represent, and the defendant was one of the persons keeping these liquors for said purpose, and was personally in charge of them, furnishing them in return for said checks, the jury may find that said liquors were kept by him for unlawful sale.”

A verdict of guilty was returned, and with defendant's consent the case reported to this court.

J. B. Carroll, for the Commonwealth.

Edgar J. Sherman, Attorney-General, for defendant.

FIELD, J. The instructions given in their application to the facts in evidence do not seem to us to differ materially from the instructions which were held erroneous in Commonwealth v. Smith,1 except, in that case, the court below ruled that the facts supposed "would be a sale by the defendant," and in this case the court ruled that from the facts supposed "the jury may find that said liquors were kept by" the defendant" for unlawful sale." This change in the ruling may have been made for the purpose of meeting the suggestion found in the opinion in Commonwealth v. Smith, that the arrangement described "may have been a mere evasion of the law" which "would be a question not of law but fact, and would fall wholly within the province of the jury."

The Legislature within the limitations of the Constitution can prohibit, under a penalty, any acts it sees fit. The meaning of the statutes must be determined by construction, and criminal statutes are to be

1 102 Mass. 144.

construed strictly, although the whole scope of the statutes must undoubtedly be considered. The Legislature by the public statutes,1 has prohibited the "selling, or exposing or keeping for sale, spirituous or intoxicating liquors," except as authorized in that chapter. It has not undertaken to prohibit the drinking or buying of intoxicating liquor; or the distribution of it in severalty among persons who own it in common. If, therefore, two or more persons unite in buying intoxicating liquor, and then distribute it among themselves, they do not violate the statute, and the intent with which they do this is immaterial. If they intend in this manner to obtain intoxicating liquor to drink without thereby subjecting any person to the penalties of the statutes, they still act with impunity, because what they do is not prohibited by the statutes. The evasion of the law intended in Commonwealth v. Smith, is an evasion by means of a form or device which is apparently legal, while the substance of what is done is within the prohibition of the statute.

In that opinion it is said: "If the liquors really belonged to the members of the club, and had been previously purchased by them, or on their account, of some other person than the defendant, and if he merely kept the liquors for them and to be divided among them according a previously arranged system, these facts would not justify the jury in finding that he kept and maintained a nuisance within the meaning of the statute under which he is indicted. There would be neither selling nor keeping for sale. On the other hand, if the whole arrangement were a mere evasion, and the substance of the whole transaction were a lending of money to the defendant that he might buy intoxicating liquors to be afterwards sold and charged to his associates, or if he was authorized to sell or did sell or keep any of the liquors, with intent to sell to any persons not members of the club, he might well be convicted." The previously arranged system referred to was similar in many respects to that in the case at bar.

The word "club" has no very definite meaning. Clubs are formed for all sorts of purposee, and there is no uniformity in their constitution and rules. It is well known that clubs exist which limit the number of the members and select them with great care, which own considerable property in common, and in which the furnishing of food and drink to the members for money is but one of many conveniences which the members enjoy. If a club were really formed solely or mainly for the purpose of furnishing intoxicating liquors to its members, and any person could become a member by purchasing tickets which would entitle the holder to receive such intoxicating liquors as he called for

1 ch. 100, sec. 1.

upon a valuation determined by the club, the organization itself might show that it was the intention to sell intoxicating liquors to any person who offered to buy; and the sale of what might be called a temporary membership in the club with a sale of the liquors would not substantially change the character of the transaction. One inquiry always is, whether the organization is bona fide, a club with limited membership into which admission can not be obtained by any person at his pleasure, and in which the property is actually owned in common with the mutual rights and obligations which belong to such common ownership under the constitution and rules of the club; or whether, either the form of a a club has been adopted for other purposes with the intention and understanding that the mutual rights and obligations of the members shall not be such as the organization purports to create or a mere name has been assumed without any real organization behind it. The decisions of other courts which are pertinent, undoubtedly turn more or less upon the particular language of the statute construed. Graff v. Davis,1 was decided on the ground that there was no transfer of the general or absolute property, but a transfer of a special interest, as all the members of the club were owners in common, and that the club was bona fide a club, the furnishing of liquors to a member was not a sale within the meaning of the English Licensing Act of 1872. Sein v. State, 2 was decided upon the same general ground. In Richart v. People,3 the court say that "the whole thing is a subtle artifice planned with a view to avoid the penalties denounced against persons violating the the law." "The proposition is absurd that the ticket-holders really owned the liquors with which the bar was stocked." The court also say, that if the theory of the defence were adopted, "the liquors would belong to the company as partnership stock, and the company would have no more rightful authority to sell to the individual members or partners at retail, without a license to keep a dramshop, than a mere stranger would have.” "But the alleged association is a mere fic

tion." "The statute makes the giving away of intoxicating liquors, or other shift or device to evade its provisions, unlawful selling." "It was a question of fact whether the association was a mere shift or device to evade the provisions of the law, and the jury having found it was, we see no reason to be dissatisfied with the conclusion reached." In Marmont v. State, it was distinctly decided that the delivery by the club or society through its agents, of beer which was the common property of the society, to a member of the society, upon credit or for cash, and which thereby became the separate property of the members, was a sale within the meaning of the Indiana Statute of 1873. State v.