State v. Wynne. , 8 N.C. 451 ( 1821 )

I am of opinion that judgment for the (454) State was properly entered up on this special verdict. The indictment is framed on the act of 1798, ch. 501, the second section of which authorizes the County Courts to grant licenses to keep ordinaries, and, at their discretion, to withhold them from immoral persons and those who are too poor to comply with the intent of the act. Persons obtaining licenses are required to give bond, conditioned for providing good and wholesome diet and lodging for travelers, etc. By the fifth section the justices are directed to rate, each year, the prices of liquor, diet, lodging, etc., to be taken by ordinary keepers; and the same section makes it the duty of the ordinary keeper to set up those rates in the public room, under the penalty of £ 20. The defendant violated the law in selling for higher rates than those settled by the court; but it is objected that, not having taken out a license, he is not an ordinary keeper and therefore not indictable; but I think it would be against all principle and authority to allow this defense to be available. The defendant has held himself (455) out to the world as an ordinary keeper; he has enjoyed more than the emoluments of one duly authorized, and has consequently assumed all the responsibilities of the character. To what end is the law made, if any man may set up a tavern, with out a license, and sell at rates established by himself? He may be without character and without credit, and contribute with impunity to that depravation of the public morals against which the law aims to provide. He may also impose upon the public under the color of legal authority, and, when called upon to answer for his conduct, shelter himself under his own double wrong of disobeying the law and defrauding the revenue. I conceive that the defendant has precluded himself, in the way of estoppel, from denying the fact of his being an ordinary keeper, upon the same principle that, in an action against a clergyman for nonresidence, the act of the defendant as parson, and his receipts of the emoluments of the church, should be evidence against him that he is parson, without requiring the plaintiff to prove the defendant's title, according to the case of Berryman v.Wise, 4 Term, 306, and the numerous cases in the books tending to prove that in the case of all peace officers, justices of the peace, constables, etc., it is sufficient to prove that they acted in those characters without producing their appointments. 8 Johns., 431; 6 Binney, 88; 9 Mass. 231; Leach. Cro. C., 585. It appears not less certain to me that the defendant is indictable under the act for selling at higher rates than those established by the court. The rule, well established on this subject, is, that where a statute creates a new offense by making unlawful what was lawful before, and appoints a particular remedy, that method, and that only, must be pursued. Cartle's case, Cro. Jac., 643. But when the offense was punishable at common law, and the statute prescribes a particular remedy, there the prosecutor may proceed, either at common law or according to the statute, because the sanction is cumulative. Accordingly, (456) it has been held that keeping an ale house without license was not indictable, because it was no offense at common law, and the statute which makes it an offense has made it punishable by committing the party for three days. Stephens v. Watson, 1 Salk., 45. That case affirms the principle that if the statute had not directed a particular mode of proceeding, an indictment would have lain; for where a new-created offense is prohibited by the general prohibitory clause of a statute, an indictment will lie. 1 Bur., 544. Though the act of 1798, ch. 501, imposes some penalties for the neglect of other duties, it imposes none for keeping an ordinary without a license, or for selling at illegal rates; and it appears evidently that such omission was the effect of design, when we look at the two former acts on the same subject (1741) in Swain's Revisal, and the act of October, 1799, in both of which a penalty is imposed for selling provisions at higher rates than those settled by the court. The first act imposes a penalty of ten shillings, and the last a penalty of £ 50. A comparison of the acts will show that the one of 1779 was before the Legislature of 1798; and I think the conclusion follows that they omitted the penalty in order that the proceeding by indictment should be alone pursued. In the language of Lord Mansfield, "It is to be presumed that the Legislature then knew and considered that disobedience to an order of sessions was an offense indictable at common law." 2 Burr., 804.