Commissioners of Roads v. Dennis , 25 S.C.L. 229 ( 1840 )

“ O’Neall, J.

The defendant obtained a license to keep a tavern. The commissioners, supposing they were entitled to demand fifty dollars for such license, as including a license to retail, have brought this process to recover it.

“I have given the subject as deliberate a consideration as my situation will permit; and, notwithstanding the great respect which I have for the legal judgment of those who entertain the opinion that a license to keep a tavern includes a license to retail, I am constrained to say that I regard the tavern license and the license to retail, as two distinct things.

“ The oldest law to which I have had reference, is that of 5 and 6 Ed. VI., c, 25, (App. P. L. 24,) which, as its title purports, was 4 for keepers of ale houses and tippling houses, to be bound by recognizance.’ After reciting the grievance, (which, unfortunately, still exists,) that ‘intolerable hurts and troubles to the commonwealth of this realm doth daily grow and increase through such abuses and disorders as are had and used in common ale houses, and other houses called tippling houses,’ this law enacted that the justices of the peace shall have 4 full power and authority to remove, discharge and put away common selling of ale and beer in the said common ale houses and tippling houses, when they shall thinlc meet and convenient.’ It then provides that no one shall be allowed to keep such houses, except such as shall be admitted in the sessions, or by two justices of the peace, whereof one shall be of the quorum, who are directed to take bond and security by recognizance, against gaming, and for the maintenance of good order. This Act, passed by the British Parliament in 1522, is the fountain from which is derived the power of the commissioners of roads to grant licenses to retail. It may be remarked that its provisions are wholly applicable to ale houses and tippling houses, which are but other names for our retail shops, now commonly called groggeries. Nothing is said about a tavern. In this Act, too, it will be remarked that the justices have, explicitly, the power to remove, discharge and put away the common selling of ale and beer in the said common ale houses, when they shall think meet and convenient. This power, on examining the subsequent legislation, extended to every species of retailing, appears to be continued to the commissioners of roads.

“The Stat. 1 J. I., c. 9, (App. P. L. 25,) to restrain ‘the inordinate haunting and tippling in inns, ale houses and other victualling houses,’ makes no mention of, or provision for tippling houses, provided for in 5 and 6 Ed. VI., c. 25. The recitation of the preamble of that statute, gives the true notion of the places which it purports to regulate, and shows that retailing does not appropriately belong to them. It states that ‘ the ancient, true and principal use of inns, ale houses and victualling houses, was for the receipt, relief and lodging of wayfaring people, travelling from place to place, and for such supply of such people as are not able to buy greater quantities, to make their provision of victuals, and not meant for entertainment and harboring of lewd and idle people, to spend and to consume their money and time in lewd and drunken manner. ’ The latter clause of the recitation, denying that ale houses and victualling houses were intended to be devoted to drunken purposes, is a most graphic description of the proper use of a retail shop at the present day.

“ The Stat. 4 J. I:, c. 5, (1 App. P. L. 25,) ‘ for repressing the odious and loathsome sin of drunkenness,’ relates to inns, victualling houses, or ale houses. The same may be remarked of Stat. 2 J. I., c. 7, and Stat. 1 C. I., c. 4. These statutes clearly show that an inn, which is now commonly called a tavern, was, in the understanding of our ancient lawgivers, a very different thing from a modem retail shop.

“ The Act of 1784,¹ (P. L. 340,) empowered (outside of St. Philip’s and St. Michael’s) any two or more magistrates, for the respective districts of the State, to grant certificates to any person or persons who may apply for the same, if in their judgment they shall think such person or persons ‘ fit and qualified to keep a tavern, inn, ordinary, punch, ale house or billiard table, or to retail strong liquors’ A certificate for one of the different establishments here described, would not, ex vi termini, included another. For example; a certificate to keep a tavern would not authorize the keeping of a billiard table. I should think, on the plain words of the Act, that a certificate to keep a tavern would not authorize the retailing of strong liquors; for this last is separated from the former, not only by one, but by two disjunctive conjunctions, showing that it was not regarded as indentical with any of the other matters provided for. It is true, the same sum was to be paid for each; but, surely, the legislature were competent to make a distinction in this behalf whenever afterwards they thought proper so to do.

“The county Court Act of 1785,²(P. L. 384,) gave to the justices of the county Court the power to hear ‘in open Court all applications for licenses to keep taverns, or public houses, within their respective counties, and to reject such application, or grant such license, for one year, as to them shall seem meet .’ In this Act, the use of the word ‘ public houses’ might give great plausibility to the idea that a tavern license was a license to retail, were it not for the Act of 1788,³ (P. L. 454,) which shows that it was not supposed that the county Courts had, by the Act of ’85, power to grant licenses to retail. It is therein provided, that the ■ ‘ authority and superintendence of the county Courts over taverns and tavern keepers, shall extend to all persons who shall retail, within the jurisdiction of any county Court, any wine, brandy, rum, gin, beer, cider, punch, or other spirituous liquors or strong drink, in quantities less than three gallons.’ That Act probably made a tavern license equivalent to a license to retail; but it shows, nevertheless, that they had, before, been distinct. The Act of 17 91,⁴(-1 Faust, 50,) however, again separated them; for it provided that the county Courts should have power to grant licenses for retailing of spirituous liquors or keeping of taverns.”

"The Act of 1799,⁵ (2 Faust, 325,) standing by itself, might show that a tavern license would include a retailer’s license ; for it gives the commissioners of roads 'full power and authority to order licenses to be granted to proper persons to keep taverns and retail spirituous liquors.’ But this Act, when read in connection with the Act of 1791, must, notwithstanding the loose wording of it, be held to mean no more than that the commissioners of roads should have the power, heretofore belonging to the county Courts, of granting licenses to tavern keepers, and to retailers.

“ The Act of 1825,⁶ (p. 57,) which was a collection of all the laws in relation to the powers and duties of the commissioners of roads, of force in the State, and a re-enactment of the same, provided that 'the sole and exclusive power of granting licenses to retailers of spirituous liquors, tavern keepers, and keepers of billiard tables, shall be, and the same is hereby, vested in the commissioners of roads.’ In this Act, it is plain that three classes to be licensed are contemplated; 1, retailers, 2, tavern keepers, and 3, keepers of billiard tables. It is plain that a license for one would not be a license for all these pursuits.

"The Act of 1835,⁷ (p. 75,) has entirely separated retailing from the keeping of a tavern; for it is, by it, made a subject of distinct legislation, and the retailer is subjected, by name, to restrictions and conditions which do not apply to tavern keepers. The price of a license to retail spirituous liquors is fixed at fifty dollars; but no provision is made for a tavern keeper’s license to be charged, either in its nature, or in the price to be paid for it. It must, therefore, stand as it did before.

"The decree must be for the defendant.”

See Act of 1849, 11 Stat. 557; 7 Rich. 518. An.

1 4 Stat, 609. An.

2 7 Stat. 236. An.

3 7 Stat. 248. An.

4 7 Stat. 268. An.

5 7 Stat. 299. An.

6 9 Stat. 564, § 23. An.

7 6 Stat. 528. An.