State v. Heise

The opinion of the Court was delivered by

Glover, J.
The retailing which is alleged in the indictment,

and admitted by the defendant, is justified on the ground, that he is a tavern keeper under a license granted by the Town Council of Columbia. The Act of 1849 (11 Stat., 557) directs *520that “no license shall be granted for the sale of spirituous liquors in quantities less than one quart, or which shall authorize the drinking of such liquors at thé place where sold, except to tavern keepers.” The 4th section of the Act provides, “ That every licensed tavern keeper shah have and keep in his or her house, so licensed, at least two good feather beds or mattresses for guests, with good and sufficient bed-clothes for the same, and provide and keep good, wholesome and sufficient diet for tra-vellers, and stabling and provender for four horses, more than his or her own stock, upon pain of forfeiting his license and recognizance, and being subject to the like penalties as for selling without license.”

No licensed retailer, who did not keep a tavern, could sell spirituous liquors in quantities less than a quart, before the passage of thiá Act, which requires a tavern keeper who obtains a license to retail, to provide food and lodging for his guests, under a penalty, and imposes upon him the duties of an inn keeper. A tavern, under this Act, is not only “ a place where wine is sold, and drinkers are entertained,” but also where provision is made “for the receipt, relief and lodging of way-faring people.”

As a condition precedent to the granting of his license, the tavern keeper is required to procure a certificate, showing that he has complied with the requisitions of the Act; and if he shall afterwards fail to “have and keep” the articles specified, and needful for the entertainment of travellers, he forfeits his license and recognizance, and is subject to the like penalties as for selling without license. The intention of the Legislature appears manifestly to have been to withdraw the privilege of retailing, where the tavern keeper shall have neglected or refused to provide the accommodations for travellers to the extent demanded by the Act, and to subject him to the penalties of retailing without a license. This interpretation of the Act is not controverted; but it is objected that the indictment should set out the offence in the words of the 4th section. It is generally sufficient to state such facts as constitute the defendant’s guilt, and bring the case within" the provisions of the statute. The *521Act declares that upon a non-performance of the condition prescribed, a tavern keeper shall be subject to the like penalties as for selling without license; and the offence charged in this indictment is for retailing without license. Nothing is taken- by intendment, and it appears that the defendant is brought within all the material words necessary to define the accusation. When he accepted the license, it was on the express condition, that if he failed to supply what the Act required for the entertainment of his guests, he would continue to retail subject to all the penalties which are incurred by those who retail without a license. The charge is not that he has neither bed nor board, because that is not an indictable offence; but that he retails under a void license, and this can be shown by evidence, as well as a retailing under a forged license. It cannot, therefore, be pretended that for the want of reasonable certainty in the description of the offence, the defendant was unable to traverse what is alleged. His non-performance of the condition under which his license was granted, is matter of evidence to which he was permitted to reply. Nor does it appear, as was insisted in argument, that on a second charge the defendant may be convicted for the same offence. Another indictment preferred against him for retailing without a license within the time specified could be sustained only on the ground that he had no license, or that it had become void, by his non-compliance with the terms prescribed by the Act. In either case, the charge is the same, and the defence depends on the validity of the license. It is not perceived, therefore, why this conviction might not be pleaded in a subsequent prosecution for acts of retailing within the same period.

The Court feels no embarrassment in pronouncing sentence upon this verdict. The specific offence established by the evidence is charged in the indictment, and the penalty for retailing without a license, whether for want of a license, or on account of a void license, is fixed by law.

It has been suggested, that the 4th section of the Act creates a forfeiture, and that there must first be judgment of forfeiture, because a forfeiture of goods and chattels at the *522common law relates to the time of conviction. The word “ forfeiture ” used in that section, was not intended to convey the technical meaning, which a forfeiture of goods and chattels? for crimes, imports. From the language employed, it is plain, that the Legislature intended the license to be null and void, whenever the tavern keeper failed to perform the condition on which it was granted. In the same connexion the recognizance is also declared to be forfeited; and surely it will not be insisted that a technical forfeiture was intended. On a breach of the recognizance, verified by affidavit, a scire facias is directed to be issued to estreat it; and when the license becomes void by a breach of the condition, the proper remedy is by indictment for retailing without a license. In the case of Heise vs. The Town Council of Columbia, (6 Rich., 404,) referred to by the appellant’s counsel, it was decided that the corporation had no jurisdiction to adjudge a forfeiture, nor impose conditions in granting licenses to retail, not authorized by the Act of 1849.

The decision is placed on the ground that no such power was delegated by the Act of incorporation, and it is admitted by the Judge who delivered the opinion, that “ Acts of the Legislature regulate the sales of such as may take out a license, the term and the price of the license, and the condition on which it may be granted.”

The motion is dismissed.

O’INeall, Withers and Whitner, JJ., concurred.

Wardlaw, J.
dissenting. I dissent. It seems to me that the defendant has been convicted of one offence, under an indictment for another. The statute of 1849, concerning the license laws (II Stat., 557) in effect defines a tavern, to be a house accommodated, to the extent there directed, for the entertainment of guests, and so licensed that the sale of spirituous liquors in quantities less than a quart may be made therein. It provides that such sale shall be made nowhere else than in a tavern, and leaves unlicensed selling to be punished according to former Acts. It specially excludes from the privileges granted *523by a tavern license the sale of liquors in any other place than that in which the license was first exercised — sec. 5th — or in a shop or other place where goods are sold, or in a bar or other place out of the licensed tavern — sec. 6th — or after the expiration of the license — sec. 8. And a defendant who has been licensed to keep tavern, but has transgressed the law in any of these particulars, may well be said to have retailed without license, for none of these acts is authorized by his license. So also under the 11th section, a retailer not a tavern keeper who sells less than a quart, or sells any quantity to be drunk at the place of sale, does what is expressly declared not to be authorized by his retail license; and so sells without license.

But the 4th section is different from these. It affirmatively requires a licensed tavern keeper to keep certain provision for guests, “upon pain of forfeiting his license and recognizance, and being subject to the like penalties as for selling without license.” The enactment is, not that if the required provision be not kept, the license shall be void ; but that by not keeping the provision, a licensed tavern keeper shall incur certain penalties, to wit: first, his license shall be forfeited; second, his recognizance shall be forfeited; and, third, he shall be further punished in the same manner, and to the same extent, as if he had sold liquor without license. A new and separate of-fence is created, and reference made to the old offence of retailing without license, for part of the punishment. The indictment for the new offence should charge that the defendant, being a licensed tavern keeper and exercising the privileges granted by his license, did not keep two good beds, &c., as required. A person who had received a license, but did not sell under it, could not be considered a licensed tavern keeper, so as to be convicted for neglecting that keeping of prescribed articles, which was de manded as a condition subsequent of his exercising his license’ for breach of which condition his license might be forfeited. The error seems to me, to be in holding that the State can seize the license for non-performance, before the breach of the condition has been ascertained by matter of record.

*524The directions of the Act concerning the recognizance has been insisted on. I think that the condition of the recognizance guards against violations of the law, either by retailing without license, or in an unlicensed manner, or by keeping a disorderly house, or by permitting unlawful gaming therein, or by neglecting to keep the prescribed provision for guests, or by disobeying any law relating to slaves or free persons of color — sec. 3 : and that when a breach in any of these particulars has been ascertained by conviction, then, “in addition to the penalties imposed bylaw” for the oifence which constituted the breach, the recognizance may after scire facias be estreated, sec. 10. Whenever; under the 4th section, the license is forfeited, so is the recognizance. It by commission of the act of not keeping beds, &c., the license is forfeited before conviction, then by affidavit and scire facias, without jury trial, the recognizance may be estreated, and judgment be confirmed for $1,000, against principal and sureties.

It will not do to say, that the conviction for selling without license, such as has been had in this case, will show the breach of the recognizance. This conviction has been had upon the ground that before it, by the very act of not keeping the beds, &c., the license became forfeited and void. Whatever may have been the evasion of the statute practised by the defendant, the proceeding which has been had was well calculated to mislead and surprise him. How could he have anticipated that-a deficiency of beds was to be proved, when the want of license was averred ? or have supposed that an omission imputed to him as a licensed tavern keeper, showed that he had no license to keep a tavern ? To his license exhibited in defence, the reply was, “You have made the license void by breach of its condition, in a particular now to be proved.” If this had been written, he might have demurred, on the ground that the breach had not been judicially ascertained and pronounced.

Motion dismissed.