People v. Murphy

By the Court, Balcom, P. J.

Edwards says, a hotel “ is only an elegant kind of common inn.” (Edwards on Bailments, 401.) The same author remarks, in a note at the bottom of page 4£)2, “ Every hotel is an inn, but not every inn is a hotel.” At common law, any person may keep an inn for the public accommodation, without a license, as the keeping of it is not a franchise, but a lawful trade open to every citizen. (The Overseers, &c., v. Warner, 3 Hill R., 150.) And I am of the opinion any person may keep an inn, tavern or hotel, in this State, without having a license to sell strong or spirituous liquors and wines to be drank in his house. Chapter 97 of the Laws of 1843 (Laws of 1843, pi 79) was abrogated in 1857, by the repeal of title nine of chapter 20, part first of the Revised Statutes, entitled, “ Of excise, and the regulation of taverns and groceries (Laws of 1857, vol. 2, p. 416, sec. 33), and by the repeal of the above mentioned title, the prohibition to erect or put up a sign, indicating that a person keeps a tavern, unless he has a license to sell strong or spirituous liquors or wines, to be drank in his house, was removed-; and any person may now erect and keep up a sign indicating that he keeps an inn, tavern or hotel, without having a license of any kind. That kind of business is, therefore, unrestricted, unless the sale of intoxicating liquors is made a part of it.

This case turns upon the question, whether the prisoner could be lawfully convicted of a misdemeanor, for selling intoxicating liquors on Sunday, as a beverage, when he had no license to sell such liquors, as an inn, tavern, or hotel keeper, on other days, granted under and pursuant to the provisions of chapter' 628 of the Laws of 1857, entitled, “An act to suppress intemperance and to regulate the sale of intoxicating liquors.” (Laws of 1857, p. 405, vol. 2.) I think the evidence authorized the jury to find he was an inn, tavern or hotel keeper, when he sold the whiskey as a beverage, mentioned by the witnesses, on Sundays, in 1859. Section 21 of the act of 1857, declares, that no inn, tavern or hotel keeper, or person licensed to sell liquors, shall sell or give away any intoxicating liquors or wines on Sunday, or upon town meeting ox ■ election days, within one-fourth of a mile of the polls, to any person whatever, as. a beverage; also, that “ whoever shall offend against the provisions of this section shall be guilty of a misdemeanor, and on conviction shall be imprisoned in the county jail, workhouse or penitentiary not more than twenty days.” It will be seen that an inn, tavern or hotel keeper, is prohibited from' selling or giving away intoxicating liquors or wines on Sunday, in any quantity as a beverage. But a person, not an inn,' tavern or hotel keeper, can, if he has no license granted under or pursuant to the act of 1857, sell strong or spirituous liquors or wines on Sunday, or on town meeting and election days, at any place, in quantities more than five gallons at a time, for any purpose ; and he may give away such liquors or wines in less quantities, or by the drink, on any day, or at the place where a town meeting or an election is held. (Laws of 1857, vol. 2, p. 110, § 13.)

I think section 21 of the act of 1857 was especially designed to prohibit inn, tavern and hotel keepers, whether licensed or not, from selling or giving away any intoxicating liquors or wines on Sunday, or on town meeting and election days, within one-fourth of a mile of the polls; and if this conclusion be correct, an unlicensed inn, tavern or hotel keeper, who sells or gives away any intoxicating liquors or wines on Sunday, as a beverage, violates that section and commits a misdemeanor. If that section' read that no inn, tavern or hotel keeper, or other person, licensed to sell liquors, shall sell or give away any intoxicating liquors or wines on Sunday, or on town meeting or election days, &e., as a beverage, the construction put upon it by the prisoner’s counsel would be correct; but the word other is not in the section, and his construction of it is, therefore, erroneous.

My conclusion is, that the prisoner was guilty of a misdemeanor, and that his conviction should be affirmed, and the •indictment and proceedings should be remitted to the Tioga Court of Sessions, with directions to proceed and render judgment (2 B. S., 5th ed., 1035, § 27), and the prisoner should be required to appear at the next term of that court to receive sentence. (Id., 1034, § 21.)

Decision accordingly.