State v. Walker , 16 Me. 241 ( 1839 )

The case was continued for advisement, and the opinion of the Court drawn up by

Emery J.

At the Court of Common Pleas, May Term, 1837, the defendant was indicted, for that on the 1st day of Feb. 1837, and on divers days and times from that day to the day of taking that inquisition at Bangor, he did presume to be and was a common seller of rum, gin, brandy and other strong liquors by retail, and in less quantities than twenty-eight gallons at a time, without being duly licensed according to law, or without any authority so to do, against the peace and contrary to the form of the statute, &c. That statute was passed the 13th of March, 1834. Tho defendant among other evidence, introduced a license to “ Atkins & Walker.” It was dated, “ City of Bangor, Sept. 5, 1836. Pursuant to an act of the State of Maine, passed March 13, 1834, Atkins Of Walker is hereby licensed by the board of Aldermen and City Clerk of said city to retail within the said city, for a term of one year from the date hereof.”

The exception against the direction of the Judge, that “ being a servant or bar-keeper of Atkins & Walker would not justify the defendant, if he knew the selling to have been in violation of the statute,” cannot prevail. The instruction is altogether as favorable to the defendant as the law will sanction.

In some civil concerns, the servant acting within the scope of his employment, if lawful, and such as may reasonably be presumed, conformable to his master’s orders, is protected. The servant is not liable for the mero negligence of tho master.

But when, as in this case, yielding credit, as we must, to the verdict, the servant has been engaged knowingly in an unlawful act, even supposing it in his master’s service, the servant becomes amenable to the penalties of the law. For the wrongful act of the servant, tho authority of the master will not be implied. If tho servant, by the command of his master, violates the law knowingly, both are liable.

The second instruction, “ that the license oí Atkins & Walker, would not apply to and authorize them to sell under it in more than one distinct place,” was founded upon a just construction of the statute.

In considering the object and design of the law from its title, we must perceive an intention to produce something like regulation of retailers. On looking into the sections of the statute, we discover that the persons to be licensed, are to be of sober life and conversation, of good moral character, and suitably qualified for the employment, and it is imposed as a duty, that this qualification and the number deemed necessary be ascertained by the judgment of the selectmen, treasurer and clerk in towns, of assessors, treasurer and clerk in plantations, of aldermen and city clerk in cities. Each person who is so approved, before being licensed, is to give bond with sufficient surety or sureties in the penal sum of ($300, on the condition prescribed in the statute. The alleged servants here who are selling in another street at an establishment, different from the store in Wall Street, give no bond. Upon the principles insisted on by the defendant, we cannot perceive, why it should be requisite to license more than one person in a town or city, for he might set up as many stores and establishments as he pleased, and nominally, or really, hire his servants in every house, or store, or establishment in the town or place, within which he is licensed. Such a construction would be mischievous, and defeat the intention of the law. We believe that the intention of the legislature was to secure the full execution of the law; because by an additional act, c. 725, passed on the 24th of March, 1835, “ in addition to the mode of recovery of any fine, forfeiture, or penalty provided in the former act of March, 13, 1834, which was by an action of debt, provision was made, that a recovery may be had by complaint or indictment. And no prosecuting officer shall discontinue any legal process commenced or to be commenced under this or the former act, except by the direction of the Court.”

The 5th section of the statute of 1834, provides, that “ no inn-holder, victualler or retailer shall suffer any disorderly conduct in his house, shop or dependencies thereof, nor suffer any person to drink to drunkenness or excess in his or her house or shop, or suffer any 'minor, or servant to sit drinking there,” indicating in our judgment, but one house, and one shop, as the place to be protected by one license to one firm.

Upon such facts as are stated in the exceptions, we are of opinion, that the third requested instruction was rightly declined to be given. It appears, that matters alleged in defence were denied and contested by the prosecution, and the cause went to the jury on the whole evidence given on the trial. Upon the grounds claimed in defence, as stated in the exceptions, that requested instruction could not properly be required.

The exceptions must be overruled, and the cause remitted to the District Court for further proceedings.