Commonwealth v. Sweitzer

COMMONWEALTH Y. SWEITZER.

Opinion,

Mr. Justice Sterrett :

For several years prior to 1888, appellant was engaged in the business of distilling whiskey in Larimer township, Somerset county. He was duly appraised and returned as a distiller by the appraiser of mercantile taxes for that year, and on May 1, 1888, he paid for and received from the county treasurer a distiller’s license, which he claims authorized him to distil whiskey, and sell the same in quantities not less than a gallon, for one year from that date. At September sessions of same year, the constable of Larimer township made return to the proper court that appellant was selling intoxicating liquors, and claimed the right to do so by virtue of a license from the county treasurer; that “ if said license was lawful he was selling by authority of law; but if not, he was selling in violation of law.” On that return he was indicted, convicted, -and sentenced under the first clause of § 15 of the act of May 13,1887. From that sentence he has appealed to this court, and contends that the learned judge of the Quarter Sessions erred in holding that the treasurer’s license did not authorize him to sell by the gallon, either at his distillery or elsewhere, and, if he did so, he was guilty of selling without license in violation of the act above mentioned, etc.

The first specification of error, complaining of the affirmance of the commonwealth’s first point for charge, presents the controlling question in this case. By his unqualified affirmance of that point, the learned judge instructed the jury that “ since the act of May 24, 1887, the Court of Quarter Sessions alone has power to grant license to a distiller to sell his products, whiskey, by the gallon; and the fact that the defendant was returned by the mercantile appraiser and paid a tax of $15 to the county treasurer, and took out a license from said county treasurer, as a distiller, will not protect defendant from the consequences of sales made since the act of May 24, 1887.” By refusing to affirm defendant’s first point, he substantially reiterated the instruction that defendant was not protected by his license from the county treasurer for any sale by the gallon made at his distillery.

While it is to be regretted that much of our modern legislation is couched in language that is far from being clear and readily understood by those on whom it is intended chiefly to operate, we are of opinion that the learned judge rightly construed the acts of May 13 and 24, 1887, involved in this case. The second section of the latter act declared in express terms that licenses shall thereafter be granted only by the Court of Quarter Sessions of the proper county, etc. Appellant had no license thus granted, and hence the sales made by him were unauthorized and contrary to law.

In principle, this case is the same as Zinner v. Commonwealth, 22 W. N. 97. In that casé the plaintiff in error as agent for Mr. Schott, a brewer in McKean county, bottled and sold beer in that county. He was indicted for selling without license, under the fifteenth section of the act of May 13, 1887, and defended under a brewer’s license issued to his employer by the county treasurer after the passage of the act of May 24, 1887. The court held that the treasurer’s license did not authorize such sales of the product of the brewery, and Zinner was convicted and sentenced. In affirming the sentence, this court said that at the time the treasurer’s license was obtained, May 25, 1887, the act of May 24, 1887, was in force, and consequently the Court of Quarter Sessions alone had power to license his employer to sell the product of his brewery.

While, in the main, the provisions of the act of May 13,1887, relate to retailers of liquor, etc., the clause under which appellant was convicted and sentenced, is general and embraces all sales without license, whether they be by the drink, quart, or gallon. The act is entitled, “ An act to restrain and regulate the sale of vinous and spirituous, malt, or brewed liquors.” The title is sufficiently comprehensive to include a general prohibition of all sales without a license. The language of the first clause of the fifteenth section is: “ Any person who shall hereafter be convicted of selling or offering for sale any vinous, spirituous, malt, or brewed liquors, or any admixture thereof, without a license, shall be sentenced,” etc.

Other questions are presented by the record, among which is, whether, as matter of law under the undisputed facts, some of the sales were consummated at appellant’s brewery or elsewhere. The view we have taken of the main question renders it unnecessary to consider that or any of the questions arising under the remaining specifications of error. There appears to be nothing in the record that would justify us in reversing the judgment of the court below.

Judgment affirmed.

COMMONWEALTH V. BAUGHMAN.

Opinion,

Mb. Justice Sterrett :

The facts of this case are similar to those in Commonwealth v. Sweitzer, appellant, No. 136 of this term, in which an opinion has just been filed, except that, in a few instances,packages of whiskey, which had been previously ordered and separated from the mass at the distillery, were delivered by the defendant elsewhere than at the distillery. In the view we have taken of the case, that distinguishing feature is immaterial, and cannot change the result.

For reasons suggested in the opinion referred to, the judgment of the Quarter Sessions must be affirmed.

Judgment affirmed.

COMMONWEALTH V. SHULTZ.

Opinion,

Mr. Justice Sterrett :

In its essential features, this case is the same as Commonwealth v. Sweitzer, appellant, No. 136 of this term, in which an opinion has just been filed, except that there were no sales C. O. D. by the appellant in this case. That fact is immaterial and cannot affect the result. For reasons given in the case above referred to, the judgment should not be disturbed.

Judgment affirmed.