55 Colo. 467 | Colo. | 1913
Lead Opinion
delivered the opinion of the court:
Plaintiffs in error, defendants in the court below, were convicted of keeping open on Sunday a place in which spirituous, vinous, malt and other liquors were kept, sold, bartered, exchanged or given away, and of therein selling intoxicating liquors on said day, contrary to the provisions of Section 1805, R. S. 1908. They were sentenced to pay a fine, and bring the cause here for review.
The case was tried upon an agreed statement ol facts. Defendants were the officers and directors, and had actual charge and management of the Cafe Mozart, a “regular restaurant” conducted in the City and County of Denver, serving meals to its patrons, day and night, and furnishing with such meals, for an additional price, intoxicating liquors in quantities less than a quart, to patrons, desiring the same. The defendants admit the sale of liquor in small quantities after midnight and apon Sunday in the restaurant, and the drinking of the same therein, but claim that because such sales were made in connection with meals, the law was not violated.
The statute requires, inter alia, that “every saloon, bar or other place where” liquors are sold or kept be closed at midnight, and on Sunday, and prohibits, during such time, the.sale of liquor therein. The defendants claim that as the word “restaurant” is'not specifically mentioned in the statute, it is necessarily excluded from its operation under the rule of construction known as “ejusdem generis.”
The contention is not sound for the simple reason
The word is not so used, however, in this statute. This was determined in Cardillo v. The People, supra, where we held that it is here used “in the sense of a barroom or grog-shop or drinking saloon kept for supplying intoxicating liquors.” We ascribed that meaning to the word, because the title of the act necessarily so limited its sense, and, for the further reason, that a statute in pari materia defines a saloon as “any place where spirituous or vinous liquors are sold in quantities less than one quart. ’ ’
A restaurant that is used solely as an eating saloon, therefore, does not come within the terms of the statute.—City of Denver v. Domedian, 15 Colo. App. 36, 60 Pac. 1107. It is equally certain, however, that a restaurant where intoxicating liquors are kept and habitually sold to the public in small quantities, does come within its terms, for it is then a “saloon or other drinking place” within the meaning of the law.
In Scanlon v. City of Denver, 38 Colo. 401, 88 Pac. 156, a conviction had under an ordinance entitled, “An ordinance concerning the licensing and regulating of dram shops and tippling houses” was under review. We there said: “It is defendant’s contention that this section of the ordinance was not intended to include bona fide keepers of restaurants, as evidenced by the title,
The name by which a place is called does not, in law, fix its status. The character of a place, what it really is, is fixed and determined by that which habitually takes place therein. If the place be open to the public to whom meals are regularly served, it is an eating saloon; but if intoxicating liquors are likewise so ■ -habitually served therein, it is also a drinking-saloop. Nor can this be affected by the comparative number of sales of food and sales of liquor, or the comparative revenue derived from one or the other. The test of the character of the place can not be: What is its principal business, but what business is there habitually carried on? If it consists, in whole or in part, of habitually selling intoxicating liquors
As said in Hussey v. State, 69 Ga. 54, 58: “It makes no difference in law whether the place be called a barroom, or a glee-club resort, or a parlor, or a restaurant, if it be a place where liquor is retailed and tippled on the Sabbath day, with a door to get into it, so kept that anybody can push it open and go in and drink, the proprietor of it is guilty of keeping- open a tippling house on Sunday. It makes no difference if the drinking be done standing or sitting — at a bar or around a table — it is tippling, and the place where it is done is a tippling house; and if anybody wishing to drink can have access thereto — if ingress and egress be free to all comers — it is a tippling house, kept open on Sunday.”
The several legislative acts requiring licenses for the sale of intoxicating liquors in less than a designated quantity, the places where, and the time when the same may be sold, are parts of one system, governed by one spirit and policy and must be construed so as to be consistent and harmonious, one with the other and in their several parts.—The People v. Gibson, 53 Colo. 231, 237, 125 Pac. 531. When so construed it is certain that the place described in the stipulation herein constitutes a saloon or other drinking place within the meaning of the law. To sell) exchange or-dispose of intoxicating liquors for gain, or knowingly permit the same to be done on his premises, in less quantities than one gallon, it is provided that every person — (except those enumerated in §§5521, 5522, E. S. 1908, to which class defendants do not belong) —must have a legal license therefor, §§ 1798, 1799, 4005, E. S. 1908; and a license granted for such purpose shall not authorize the person obtaining the same to sell such liquors in more than one place or house, and every license shall describe the house and place intended to be occupied. — § 3995, E. S. 1908. It is then declared that all
The judgment is affirmed.
iJudgment Affirmed.
Decision en banc.
Concurrence Opinion
specially concurring:
I concur in the conclusion reached in this case, but cannot agree to much that has been said in the opinion. It is true that our statutes upon this subject when considered together, are incongruous and even absurd. But the sole purpose of the statute under consideration and all others bearing relation to it, was to prohibit the sale of intoxicating liquors on the Sabbath day and between the hours of midnight and six o’clock a. m. on week days, and this regardless as to where the liquor might be sold, or what article, food or otherwise, might be sold at the same time with it. The agreed statement shows that the liquors are sold entirely independent of the meal, and by the drink or bottle, and for a price separate and distinct from the meal. This to my mind constitutes a clear violation of the law.
But I cannot agree that it was the purpose or intent of the legislature to declare that a legitimate hotel or restaurant, the chief business of which is to furnish lodging or food or both, should close its dining room on Sunday, simply because it served liquors with its meals on week days. Such places are not saloons, grog shops nor tippling houses, and cannot be made so by statutory definition or judicial construction, but they are places where intoxicating liquors may not be sold on Sunday or during the prohibited hours on week days. The provision for the closing of places where saloons or grog shops are conducted on Sunday, and the prevention of loitering in such places on Sunday is for the secondary purpose alone of securing the enforcement of the prohibition of liquor sales in such places at the times mentioned.
It is a very natural conclusion that the legislature intended to prohibit the sale of intoxicating liquors in every place on Sunday, and after midnight, but it is a reflection on the intelligence and common sense of its membership to say that they intended to prevent hotels
Dissenting Opinion
dissenting.
The majority opinion is based upon the assumption that the statute embraces every place where liquors are sold in less quantities than one quart.
The cases cited from this jurisdiction do not, in my opinion, sustain this conclusion, for the simple • reason that in the case at bar the question is whether a keeper of a bona fide restaurant who sells liquors in connection with meals is embraced within the statute — a proposition which was in no sense involved in any of our previous decisions — and hence is one of first impression which must be determined from a construction of the statute under the facts stipulated.
The word “saloon,” standing alone, has several definitions, but as employed in the statute under consideration should be given that meaning which the word usually conveys, namely, a place to which the general public has access where liquors are sold by the drink, over a bar, to be drunk upon the premises. No one would think of designating a dining-room of a hotel or regular restaurant, where liquors are furnished in connection with meals, a saloon, but would employ the word only in designating a public place where liquors are sold over a bar, or by the glass. This is the popular understanding of what constitutes a saloon, and this restricted meaning should always be given where the context or circumstances require it. The statute says, “Every saloon, bar or other place,” where liquors are kept, sold, or given away, shall remain closed during designated hours. A bar as thus used is synonymous with saloon, and this clearly indicates what the legislature meant by the word ‘ ‘saloon”: in other words it means, as previously stated,
The intent of the legislature is the law, and where it may be said that from the words employed, the intent is doubtful, they should be so constructed by the applica-' tion of any of the recognized rules of construction as will avoid anomalous or absurd results. In Birmingham, v. The People, 40 Colo. 362, 90 Pac. 1121, it was decided that the statute under consideration forbids the places thereby included from being’ kept open during certain hours, that during that time liquor shall not be sold therein, nor shall persons not connected with the business be permitted to be, or remain in, or around them, during the time prohibited. From the language of the statute a violation of either of these inhibitions, subjects the of
The judgment of the district court should be reversed, and the cause remanded with instructions to dismiss the proceeding.
