Connolly v. People , 1891 Ill. App. LEXIS 225 ( 1891 )

Harker, J.

Plaintiff in error was indicted and tried under Sec. 6 of the Dram Shop Act for selling intoxicating liquor to two minors, Albert Williams and Delbert Shreffler. He was found guilty under one count for selling to Albert Williams, and under three counts for selling to Delbert Shreffler.

The proofs made by the prosecution abundantly support the verdict.

The only defense interposed was that the sales made to Delbert Shreffler were upon the following order identified by the minor’s father and shown by him never to have been revoked.

“ Joilet III., July 20, 1888.

“ To Thomas Connelly, Jb., Saloon Keepee :

“ You are hereby authorized and requested to sell or give to Frank and Delbert Shreffler, who are minors, ale, beer, whisky, and other spirituous, vinous and malt liquors from day to day, and at all times in such quantities as they may desire ; and to allow them to enter and remain in your saloon for the purpose of obtaining the same until otherwise directed by me.”

“ Signed, John Shbeeflee, Parent.”

The court refused to allow the order read in evidence, and this action of the court constitutes the sole ground on which a reversal is asked.

The section of the statute in question reads as follows :

“Whoever by himself or his agent or servant shall sell or give intoxicating liquor to any minor without the written order of his parent, guardian or family physician, * * * shall for each offense be fined not less than §20, nor more than §100, or imprisoned in the county jail not less than ten, nor more than thirty days, or both, according to the nature of the offense.”

This statute is highly penal. The order under which the sales were made falls within its letter.

We are at once confronted, then, with that long established and familiar canon, penal statutes must he construed strictly. An application of it alone would make the action of the Circuit Court in excluding the order from the jury erroneous. There is, however, another canon of construction, equally as familiar that must be borne in mind. Statutes must he interpreted according to the intent and not always according to the letter. A thing within the intention is within the statute, though not within the letter; and a thing within the letter is not within the statute unless within the i/ntention.

The clashing of these two rules have occasioned to courts no small amount of difficulty when called upon to construe penal statutes.

When and to what extent the rigor of the former should be relaxed where an application of it violates the principle of the latter is a very serious question.

To the contention that the rule last mentioned is not applicable to penal statutes the reply may be made that our Supreme Court has so applied it. Albrecht v. The People, 78 Ill. 510; Perry County v. Jefferson County, 94 Ill. 214; Soby v. The People, 134 Ill. 66.

Whenever a conflict occurs in the application of these rules it may be stated as a safe proposition that although penal statutes are to be construed strictly they should not be construed so strictly as to defeat the obvious intention of the-legislature. Ho such construction should be given as would enable parties acting under the law to so conduct themselves as to render nugatory its provisions.

The statute in question has regard not alone to the will and wishes of parents over the conduct of their children, but chiefly to the wholesome restraint of minors as immature members of society. It is designed to promote temperate habits among the youth of the State during the formative period of their characters.

The evident intention of the provision was to place the child’s need for intoxicating liquors upon parental discretion as to time and quantity—a discretion not to be delegated to the child. The principle at the foundation of the law is that the minor’s discretion is not to be trusted. Hence it requires a decision of the parent evidenced by writing. A parental decision applicable alike to all occasions, and measuring the supply of liquors by nothing but the desires and appetites of the minor, violates the spirit of the act. Consistently with the legislative intention, the parent must hold control of the supply both as to time and quantity, and the written authority must be special, as contradistinguished from general. Gill v. The State, opinion by the Supreme Court of Georgia, 13 N. E. Rep. 86.

We do not desire to be understood as holding that there must be a written order for each occasion. There might be circumstances under which the order could properly include more than one sale. If it shows on its face that the parent holds control of the supply as to times and .quantity then it would be special, although it authorized a sale to the minors for more than one time.

The written order in this case, authorizing and requesting as it does, the saloon keeper to sell to the two minor sons of John Shreffler any and all kinds of intoxicating liquors, at all times and in such quantities as they might desire, shows upon its face that it is an attempted evasion of the law. It treats the father alone as interested in the conduct of his boys, and ignores the wider and more important policy of the law, which is to rear good citizens and conserve the public weal. To hold it valid because it is within the letter and because penal statutes must be construed strictly would enable saloon keepers and fathers not in accord with the law to defeat its very purpose.

The judgment must be affirmed.

Judgment affirmed.