145 S.W. 940 | Tex. Crim. App. | 1911
Appellant was prosecuted under complaint and information, charging that appellant "J.S. Adams, in the county and State aforesaid, on the 24th day of September, A.D. 1911, in a certain locality in said county and State where local option was not then and there in force, did then and there unlawfully sell, directly and indirectly malt liquors capable of producing intoxication in quantities of one gallon and less than one gallon, without taking out a license as a retail malt dealer under the laws of the State of Texas, he the said J.S. Adams, not being then and there a retail liquor dealer under the laws of the State of Texas, and not then and there having taken out a license as a retail liquor dealer under the laws of the State of Texas, and he the said J.S. Adams did then and there unlawfully sell malt liquors capable of intoxication, to wit, one pint bottle of beer to T.B. Kendall, and one pint bottle of beer to Dan Lahue."
The agreed statement of facts shows that appellant was the acting steward of the Pastime Driving Athletic Club, a corporation chartered under the laws of the State of Texas, its articles of incorporation reading: "The name of this corporation shall be `Pastime Driving Athletic Club.' The purpose of this corporation shall be for the support and maintenance of innocent sports. Its business shall be transacted in Dallas County, the State of Texas. This corporation shall exist for a period of twenty-five years from the date hereof. The directors of said corporation shall be five in number and those appointed for the first year are as follows: Karl C. Rath, J.B. Simpson, Henry Menczer, J.W. Gardner, and John Leonard, all of whom reside in *223 Dallas County, Texas. This corporation shall have no capital stock and no profit shall be made by said corporation."
This charter is dated June 22, 1906, and this club has been in existence since said date. It is agreed that:
"The purpose for which the corporation was created and organized is `in the support and maintenance of innocent sports.' Shortly after its organization the corporation leased and improved a plat of land on the west side of Exposition Avenue in the city of Dallas, now used by it, and used by it on September 24, 1911, for a club house and grounds; the grounds consisted of about two (2) acres of land which lies wholly within the limits of the city of Dallas, and without the saloon limits of the city of Dallas.
"The club erected a club house on the grounds for the convenience of the members in 1906, the club house being thirty-two by fifty feet in size. During the same year the club also erected two summer houses for athletic sports, one of which was thirty-two by seventy-five feet in dimensions, and the other forty-two by forty-two feet in dimensions. The clubhouse is provided with a complete outfit for athletic sports, including horizontal bars, parallel bars, dumb bells, Indian clubs, trapezes, ring trapezes, wrestling mats, and a variety of other mats, used for the protection of the members in their athletic exercises; also a rowing machine, several pairs of boxing gloves, wall exercisers, wall ladders and shower baths. A cafe was also established in the main club room for the purpose of furnishing meals and lunches to the members of the club, and in connection with the cafe a buffet was provided for the purpose of furnishing drinks to the members of the club.
"The club house and all of the equipment therein, together with the cafe and buffet, are used exclusively by members of the club and out of town guests; no guests are allowed in the club rooms who reside in the city of Dallas, but members are permitted to bring out of town friends who are visiting in the city, to the club rooms as guests, but no guest is allowed to pay for anything in the club rooms, either at the cafe or the buffet. No sale of drinks was ever made to any person except to members of the club.
"The club uses a quantity of household and kitchen furniture in the cafe, sitting room and summer houses, and maintains a steward and an assistant steward, and two porters; the club maintains the cafe for the service of meals and lunches if called for by, and only by, its members, and for the sole use of themselves and their invited guests, but no guest is permitted to pay for anything under any circumstances.
"The club is composed of 498 members, and has a limit of 600 members. The defendant, J.S. Adams, is now a member, and was a member of the club on September 24, 1911, and long prior thereto.
"Since the date of the incorporation of the club it has from time to time purchased in bulk, quantities of spirituous, vinous and malt liquors capable of producing intoxication; and through its authorized *224 agents and employees retailed the same to its members in quantities of one gallon and less than one gallon, at an agreed price per drink, and has continuously so done to date. Spirituous, vinous and malt liquors were kept for sale at the club on September 24, 1911, to be sold exclusively to the members of the club. Each member of the club pays for the quantity of spirituous, vinous and malt liquors that he calls for and consumes. Only members of the club are permitted to purchase in any quantity from the club or its agents or employees, the liquors, but members are permitted, and do invite out of town friends, who are visiting in Dallas, to the club and these invited guests are permitted to drink liquors with the club members, but the guests are not permitted under any circumstances to pay for same. The members purchase the liquors, and not the guests.
"Neither the club, nor any of its officers, directors, agents or employees, have paid the annual tax levied on every person by the State of Texas, who sells or keep for sale, spirituous, vinous or malt liquors, capable of producing intoxication. On September 24, 1911, and prior to that time, the club had not, and has not now, a license under the laws of the State of Texas, and neither has any of its officers, directors or members, a license under the laws of the State of Texas, to retail liquors at the club house of the Pastime Driving Athletic Club. The club has continuously since its incorporation, paid internal revenue license to the United States, as a retail liquor dealer. And that on the date alleged in the information he sold to the parties named the beer alleged to have been sold, and collected therefor the sum of fifteen cents per bottle, which he placed in the treasury of the club."
The questions presented for our consideration are but two: Did the transaction constitute a sale within the meaning of our laws, and if it constituted a sale, was appellant, or the club for whom he was acting, liable to pay the tax levied upon those engaged in selling intoxicating liquors. The evidence shows that the incorporated club purchased liquors in bulk, with money in the treasury, and sold or dispensed the liquors to its members at the usual or customary price. This we think constitutes a sale under all the rules of law. If any given number of persons organize an association under any name whatsoever with the understanding and agreement that such goods are to be dispensed to the members in such quantities as each may desire at the usual and customary price, the member paying only for such quantity as he receives, such transaction constitutes a sale by the association to the member. Appellant cites us to the case of State v. Austin Club,
"The question as to whether or not the transaction of dispensing liquors to the members and guests, as in this instance, constituted sales within the meaning of statutes prohibiting such sales, has been the subject of much judicial investigation, upon which there is a great conflict of authority, but that question is not involved in the case now *225 presented to us, and we refrain from discussing it and will not undertake to review the many authorities, bearing upon it cited by the counsel for both parties in the case."
Since that case was decided this court has been called on to specifically decide that question, and in the case of Feige v. State, 49 Tex.Crim. Rep., 95 S.W. Rep., 506, this court held: "In any event, according to our view, the club members, when they paid their money into the treasury, parted with it to the corporation, the corporation becoming the owner thereof; and when the corporation sent out this money it bought the beer on its own behalf in Ft. Worth, and if at any time the corporation had failed and become subject to execution, the beer and property of the same could have been seized for the debts of such corporation. When the beer was brought from Ft. Worth to Cleburne, being the property of the corporation, whenever it delivered a glass of beer to any member and received therefor five cents, it became the vendor of such glass of beer; the title to the same was parted with by the company through its manager to the vendee, and the manager of said company made a sale to such member." See also the case of Finn v. State,
"The question here is whether the sale of intoxicants by the managing steward or barkeeper of the club to one of the members of said club is a sale. We are of opinion that it is. When the intoxicants were bought by the steward, or any other member of the club, with the funds of the club, they became the property of the corporation, and a sale by the steward of said corporation to any of its members was a sale, as that term is defined. It was the separation of the property of the club, and the transfer of the same to an individual member, for which he either paid the cash, or became responsible therefor. As testified in this case, this transaction between defendant and the alleged purchaser was brought fairly and clearly within the definition of `sale,' as that term is defined in all the law books," citing many authorities.
None of the cases cited by appellant as decided by the courts of this State bear out his contention that the transaction would not be a "sale," but in them it was held they were not liable for the tax levied by the State on the business of selling intoxicating liquors.
This brings us to the second proposition: Was defendant, or the Pastime Driving Athletic Club, in making such sales, guilty of violating the law which prohibits the sale of intoxicating liquors by anyone without first obtaining a license so to do. A careful reading of the law levying a tax on those engaged in selling intoxicating liquors will disclose that a chartered club or incorporated company can not procure license in this State to engage in the business of a retail liquor *226
dealer. The Legislature at the time it passed this law, knew that, under the decisions of the Supreme Court in the Austin Club case, above referred to, and the case of Koenig v. State,
"In the case of Supreme Council A.L.H. v. Anderson, 36 Texas Civ. App. 615[
Many other authorities might be cited in this and other states so holding, and in applying this well known rule of construction to this statute, in the light of the decisions of this court and of the Supreme Court on this question, no such construction should be placed on this statute as would prohibit clubs from thus dispensing or selling liquors to their members.
While the sales in this instance were made on Sunday, yet this prosecution is not based on article 199 of the statute which prohibits sales on that day, but is a prosecution for selling without first paying the tax and obtaining a license, and we pass on this question alone. A different question would be presented if appellant was prosecuted under the statute prohibiting sales on Sunday or other days in which sales are prohibited, but the question as to whether these clubs would be authorized to make sales of this character on Sunday, or election days, or other days, when our laws prohibit sales by all persons, is not before the court, and any expression on our part would be but obiter dicta, and the sole question presented in this case, and upon which we alone pass, is that bona fide clubs organized for legitimate purposes, *228 as in this one, who sell or dispense liquor to their members alone, as a mere incident to their organization, and not as a business for profit, are not required or permitted to take out a license to thus sell liquors, and this being true, the proper construction of the statute does not prohibit them from selling to their members as they have heretofore done on days which the laws of this State permit sales to be made.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
[Rehearing denied April 3, 1912. — Reporter.]