Commonwealth v. Pillsbury

Bigelow, J.

1. The defendants failed to show any legal authority to sell intoxicating liquors. The provisions of St. 1855, c. 215, §§ 5, 8, relating to the appointment of agents by cities and towns for the purchase and sale of such liquors, are to be construed together. Under these provisions, no appointment is complete, and no authority is conferred to make purchases and sales, until a bond has been given by the person appointed to thé city or town, and a certificate has been issued to him by the mayor and aldermen or selectmen in pursuance of § 8. This bond and certificate are intended to be conditions precedent, to be complied with by the agent before his authority to act becomes perfect. Any other construction of this part of the statute would be unreasonable. The bond is intended to secure the faithful performance of the duties of the agent, and the strict compliance on his part with the provisions of law and the rules which the mayor and aldermen or selectmen may from time to time prescribe concerning the mode of conducting the business of the agency. This purpose would be defeated if the authority to make sales and purchases were full and complete, immediately on the passage of a vote appointing a person to be an agent. The various acts necessary to create the agent and, clothe him with the requisite authority must necessarily be done gradatim. First, the appointment is to be made, then the bond is to be given, and lastly the certificate is to issue; in like manner as in cases of appointment to public office, the act designating or nominating a person for the place is the first step, then the oaths of office are to be taken, and in many cases a bond is to be given, and thereupon and not before the authority to perform the duties of the office is vested in the appointee. The notice given to the defendant Pillsbury by the clerk of the city was only an announcement of his appointment to the agency, for the purpose of enabling him to take the necessary steps to procure the bond and receive the regular- certificate of his appointment. But it contains none of the requisites of such certificate according to the provisions of § 8. On this pari of the case, therefore, the instructions were clearly right, and all questions concerning the revocation of the appointment became wholly immaterial.

2. The instructions to the jury concerning the effect of a delivery of intoxicating liquors, as constituting prima facie evidence of a sale, were in conformity to the provisions of the statute on this point, which establishes the same rule “ in all cases under this act,” and which has ■ already been decided to be a constitutional and valid enactment. Commonwealth v. Williams 6 Gray, 1. Commonwealth v. Wallace, 7 Gray, 222.

Exceptions overruled.