Nicrosi v. State , 52 Ala. 336 ( 1875 )

MANNING, J.

Section 3618 of the Revised Code makes it an indictable offence for any “ person who, not having first procured a license as a retailer from the proper legal authority, sells vinous or spirituous liquors of any kind .... in any quantity, if the same is drunk on or about his premises.”

The agreed state of facts in this cause shows that defendants did sell vinous liquors to be drunk and which were drunk on their premises ; but they were so drunk only by persons taking meals at the time at the restaurant in Montgomery which defendants were licensed to keep. And it is ingeniously and elaborately argued that this was not a violation of said § 3618.

We are asked to make an exception in the statute law, which the legislature did not make when it was framed and adopted. If we established such an exception, it would be equivalent to making an addition to the statute, of this effect: provided, it shall be no offence for a licensed restaurant keeper to sell such liquors to his customers to be drunk while they are taking meals on his premises.

Suppose an amendment, such as this suggested proviso, had been offered while the enactment was pending in the legislature; have we any warrant for saying it would have been adopted ? May not the general assembly have thought that the making of such an exception would lead to the establishment of a great many restaurants, in which the liquors would be the chief article purchased and partaken, and the solid food a mere incident or pretence ; and which, nevertheless, it would be very difficult, if not impossible, to abate ? See Pierce & Baldwin v. Pass & Co. 1 Port. 232. It was very easy, if the legislature was willing such an exception should be made to the law, for it to make it. For us by construction to make it would, we think, be an exercise of a power denied to the judicial department, — and an invasion of the province belonging to the general assembly alone.

The indictment is in the form prescribed by the Code, and has been held to be sufficient under § 3618 of the Revised Code. Mulvey v. The State, 43 Ala. 318; Campbell v. The State, 46 Ala. 116.

We think there is no error in the matters brought to our attention. And the judgment of the court below is affirmed.