311 Mass. 116 | Mass. | 1942
A complaint in a District Court charged that the defendant “on the twelfth day of October . . . [1940], that day being Columbus Day, did keep open his shop in . . . Cambridge, between the hours of seven o’clock ante meridian and one o’clock post meridian, for the purpose of doing retail business therein.” The defendant was found guilty. Upon appeal to the Superior Court the case was heard by a judge, sitting without a jury, on an agreed statement of facts, and the defendant was found guilty and sentenced. With the consent of the defendant the case was reported to this court for the decision of questions of law arising therein. G. L. (Ter. Ed.) c. 278, § 30. See Commonwealth v. O’Neil, 233 Mass. 535, 543.
There was no error.
General Laws (Ter. Ed.) c. 136, § 5 — herein referred to as the Lord’s day statute — provides that “Whoever on the Lord’s day keeps open his shop, warehouse or workhouse, or does any manner of labor, business or work, except works of necessity and charity, shall be punished by a fine . . . .” And G. L. (Ter. Ed.) c. 4, § 7, as finally amended by St. 1938, c. 245, so far as here material — herein referred to as the Columbus day statute — provides that “all laws, statutes, orders, decrees, rules and regulations regulating the keeping open of retail stores on the Lord’s day shall be applicable to the keeping open of retail stores on October twelfth between the hours of seven o’clock ante meridian and one o’clock post meridian.”
. Material facts appearing in the agreed statement of facts include the following: “The defendant, at the time of the complaint, was duly licensed by the licensing authori
The facts agreed clearly warranted a finding that the defendant kept open his place of business, for the purpose of doing business therein, within the specified hours on Columbus day, 1940. See Commonwealth v. Collins, 2 Cush. 556; Commonwealth v. Lynch, 8 Gray, 384; Commonwealth v. Dextra, 143 Mass. 28, 31. The defendant contends, however, that his place of business was not a “retail store” within the meaning of G. L. (Ter. Ed.) c. 4, § 7, as amended. According to the agreed facts his place of business was a “tavern.”' He was duly licensed as a “tavern keeper” within the meaning of G. L. (Ter. Ed.) c. 138, § 1, as amended. See St. 1935, c. 253, § 1. “Tavern” is therein defined as “an establishment where alcoholic beverages may be sold, as authorized by this chapter, with or without food, to be served to and drunk by patrons in plain view of other patrons, all entrances to which shall open directly from a public way.” Said c. 138 is entitled “Alcoholic Liquors.” Section 12 thereof, as amended (see St. 1933, c. 376, § 2; St. 1934, c. 121, § 2; St. 1935, c. 253, §§ 2, 3, 4;
The charge in the complaint is keeping open a “shop” as that word is used in the Lord’s day statute, G. L. (Ter. Ed.) c. 136, § 5 —■ a statute that, so far as the use of the word “shop” is concerned, has not been changed in substance in many years. See Rev. Sts. c. 50, § 1; Gen. Sts. c. 84, § 1; Pub. Sts. c. 98, § 2; St. 1895, c. 434, § 2; R. L. c. 98, § 2. In these earlier statutes, as now, the phrase “shop, warehouse or workhouse” was used. Doubtless the word “shop” may have different meanings when used with different contexts. But in Boston Loan Co. v. Boston, 137 Mass. 332, 336, where, however, the word “shop” was used in a different statute from the statute here involved, it was said: “‘Shop,’ in its popular as well as legal meaning, is not confined to a workshop. It is a word of various significance, and ‘store’ and ‘workshop’ are both included in it, and do not exhaust its meaning.” And in Commonwealth v. Riggs, 14 Gray, 376, 378, where there was an indictment for larceny in a “building, called and being a shop,” the court said that the building was “rightly denominated a shop,” being a “place kept and used for the sale of goods.” See also Commonwealth v. Annis, 15 Gray, 197, 199, 201. Moreover, in Commonwealth v. Graham, 176 Mass. 5, 6, under the Lord’s day statute then in effect, a defendant was charged with keeping open her shop on the Lord’s day, and there was evidence that she, a licensed victualler, kept a restaurant open as a dining room, supplied meals to a large number of persons and sold cigars to some of them. (The sale of tobacco on the Lord’s day by common victual
But the defendant contends that his tavern was not within the description of “retail stores” in the Columbus day statute. Obviously the Columbus day statute is narrower in scope than the Lord’s day statute, since the former statute incorporates the provisions of the latter statute only with respect to “retail stores.” The word “shop,” as already pointed out, may include places of business that are not “retail stores” or even “stores.” Some doubt as to the meaning of the word “store” was suggested in Commonwealth v. M’Monagle, 1 Mass. 517. But in Commonwealth v. Whalen, 131 Mass. 419, 421, where the defendant was charged with breaking and entering “a certain building, to wit . . . [a] store,” and the evidence showed that in the building in question there were dining rooms in which meals were served but in one of them there was a bar, and
On the facts agreed the defendant’s tavern was not only a “shop” within the meaning of the Lord’s day statute, but was also a “retail store” within the meaning of the Columbus day statute, as above interpreted, so that the provisions of the Lord’s day statute, extended to Columbus day with respect to “retail stores,” were applicable to the defendant’s tavern. Alcoholic beverages, notwithstanding their nature and the statutory limitations upon the sale thereof, are “merchandise” within the meaning of that word as used in the cases interpreting the word “store.” See Commonwealth v. Whalen, 131 Mass. 419; New England & Savannah Steamship Co. v. Commonwealth, 195 Mass. 385, 391; Bruno v. United States, 289 Fed. 649, 653. And the business carried on by the defendant at his tavern obviously was “retail” in its nature.
The defendant contends, however, that in serving patrons at his tavern he was not selling alcoholic beverages in such a sense as to constitute his tavern a “store” for the sale of or traffic in merchandise. He argues the analogy of a tavern to a restaurant, with respect to which it has been suggested that the restaurant keeper does not sell the food but that
On the contrary, the decisions relating to the serving of food at a restaurant for immediate consumption support the conclusion that the serving of an alcoholic beverage at a tavern to be drunk on the premises constitutes a sale of such alcoholic beverage. And this conclusion is in accord with the language of the statute relating to alcoholic beverages. G. L. (Ter. Ed.) c. 138, as amended. A “keeper of a tavern,” as the word “tavern” is defined in the statute, is licensed to “sell” such alcoholic beverages, according to the express language of the statute, to be “served and drunk,” G. L. (Ter. Ed.) c. 138, § 12, as amended, under a subtitle of the statute, “Sale of alcoholic beverages . . . to be drunk on the premises.” And a “tavern,” as so defined, is “an establishment where alcoholic beverages may be sold.” G. L. (Ter. Ed.) c. 138, § 1, as amended. Clearly the statute treats the transaction between a tavern keeper and a patron as a “sale.” The fact that the alcoholic beverage is to be drunk on the premises does not preclude the transaction from being a “sale,” any more than does the fact that food served at a restaurant is to be consumed on the premises prevent such a transaction from being a “sale.” It is not the less a “sale” because a place is provided where the alcoholic beverage is to be drunk, nor because of the fact that the alcoholic beverage sold may be a “mixed drink,” or, if “straight,” may be served with a “chaser.” In this respect the transaction is analogous to the service of food at a restaurant to be consumed on the premises. The accommodations provided and the service rendered are incidents of the “sale.” See Petros v. Superintendent of Buildings of Lynn, 306 Mass. 368, 371-372. Obviously such a “sale” is at retail.
Doubtless not every “sale” of an alcoholic beverage at
Judgment affirmed.