122 Tenn. 440 | Tenn. | 1909
delivered tbe opinion of tbe Court.
Tbe plaintiff in error, upon an indictment charging him with unlawfully selling intoxicating liquors with
The facts on which this conviction was made are, briefly, as follows: Tfie Benevolent and Protective Order of Elks of tfie United States of America is a fraternal benevolent and social organization, with about 1100 subordinate lodges, consisting of near 400,000 members, located in the different parts of tfie United States. One of these lodges is known as tfie Knoxville Lodge of Elks, No. 160. This lodge is incorporated under the laws of Tennessee, with its situs in tfie city of Knoxville, in this State, and fias a membership of several hundred. It also fias a large building in tfie city of Knoxville, fitted up for tfie convenience and comfort of its members, and having all tfie appurtenances of a social club. Within this building and a part thereof is a small room equipped and used as a buffet, where members of the lodge, and no one else, could obtain refreshments, including intoxicating liquors. All tfie supplies used in this buffet were furnished by and were tfie property of tfie lodge. Tfie trustees of tfie lodge employed tfie plaintiff in error as steward, whose 'duty it was, among other things, in the operation of this buffet to serve tfie members, upon tfie presentation of printed checks, theretofore purchased by them from tfie lodge, intoxicating liquors. These checks had stamped upon them: “Good for service only,
It is proper to say that there is no claim on this record that this lodge is not organized under the statute. as a bona fide one for social and benevolent purposes, or that its charter was obtained as a cloak or device to serve its incorporators and members in the sale and purchase of intoxicants, in evasion of the law prohibiting such sales without license. Upon these facts, the question is: Was plaintiff in error guilty of the offense charged?
Within the last few years many cases of a similar character to the present have reached a number of the courts of last resort in this country, and it will be found upon, examination that the opinions of these courts on the question involved are irreconcilable. Thus it has been held in one class of these cases that a bona fide social club, organized for the purpose of establishing a library in connection with the clubrooms for social enjoyment, may serve its members and their invited guests with intoxicating liquors, the members only paying therefor, the money so received - being used to replenish the stock, but insufficient for that purpose, without being liable to pay license required from re
There is still another class in which it has been held that the dispensing of intoxicants to its members by a bona fide social club, where the liquors are held in common, is not a sale of liquors within the meaning of the license laws. State, ex rel. Bell, v. St. Louis Club, 125 Mo., 308, 28 S. W., 604, 26 L. R. A., 573; State, ex rel. Columbia Club, v. McMaster, 35 S. C., 1, 14 S. E., 290, 28 Am. St. Rep., 826.
In Barden v. Montana Club, 10 Mont., 330, 25 Pac., 1042, 11 L. R. A., 593, 24 Am. St. Rep., 27, it was held that a social club, by reason of keeping a bar and furnishing liquor to its members are invited guests, where such liquor was not sold for a profit, and the club was not a device for evading the laws as to the sale of such liquors, was not subject to the license tax imposed by the statute on “all persons who deal in, sell or dispose of” intoxicating liquors.
On the other hand, there are a number of courts of high character holding, as did the supreme court of Illinois, in South Shore Country Club v. People, 228 Ill., 75, 81 N. E., 805, 12 L. R. A. (N. S.), 519, 119 Am. St. Rep., 417, that “an incorporated social club, organized in good faith for pleasure, social recreation, and outdoor sports, with a limited membership, a clubhouse elaborate in its appointments, including library, reading room, card and billiard rooms, dining room,
Coming, now, to our own decisions, the first case in which the question here involved was considered is that of Tennessee Club v. Dwyer, 11 Lea, 452, 47 Am. Rep., 298. The Tennessee Club, of Memphis, was a social club, organized under Acts 1875, c. 142, sec. 1, subsecs. 3, 5, and maintained a library, gave musical entertainments, afforded meals for its members,
The clause in the act of 1881, relating to the privilege tax required of retail liquor dealers, and under which the county court clerk demanded the tax in question, was as follows: “Where they do business at any place not in a city or town, or in a city or town of one thousand inhabitants, or less, $150 per annum; in a city or town of more than one thousand inhabitants and less than five thousand, $150 per annum; in a city, or town, of five thousand inhabitants or more, $250, quarterly or semi-annually in the same proportion.”
It is true that the court was aided in coming to the conclusion above announced, that it was not the purpose of the legislature to embrace clubs, organized and conducted as was the complainant, as retail liquor dealers, from the fact that the statute provided that retail liquor dealers should be taxed “as other merchants,” and graded the tax “according to the population of the town or city in which such retail traffic is carried on,”
The next case arising in this State is that of Hermitage Club v. Shelton, 104 Tenn., 101, 56 S. W., 838, which, it is here insisted, overruled the Dwyer Case. There it was held that the Hermitage Club, upon the agreed statement of facts, was liable to pay the privilege tax imposed, on liquor dealers by chapter 432 of the Acts of 1899. It is insisted that that case is conclusive authority to sustain the conviction in the present case. It is true that the club in that case, as in the present, was a bona fide social club, organized or chartered under the act of 1875, and that the tax then, claimed, the legality of which was sustained by this court, was under an act similar in terms to the one involved in the present controversy. The act of 1899, after classifying liquor dealers with merchants and fixing the amount of privilege tax to be paid by them, graduating it according to the population of the town, taxing district, or city in which they do business, then defined such dealer to be “every person, company, or firm,'selling spirituous liquors, wines, or malt liquors, beer or ale, or intoxicating bitters, or any medicated or adulterated cider, or any social club or association, incorporated or otherwise, which handled such liquors for sale.” That act further provided that “the procur
The revenue act of 1907 (Acts 1907, c. 541), which was in existence at the time of the transaction which occurred which forms the basis of the indictment in this case, whs similar in terms to those just quoted from the act of 1899. The distinction, if any, between that case and the present, is not to be found in the acts, but in the facts presented by the records in the two cases. In that it was conceded in the agreed statement of facts that the Hermitage Club had taken out a United States revenue license, covering the period of time for which the State and county were demanding a privilege tax. In the present case no such license had been secured. The question there was whether the Hermitage Club had succeeded in overcoming the prima facie case that it was engaged in the retail liquor business by reason of having secured United States revenue license, while in the present no such question arises. While it is said that a “social club” was in the mind of the legislature in the act of 1899, yet it was conceded in the opinion that it was not such a club organized under the act of 1875 that “per se is subject to this privilege tax,” but only when it “handles liquors for sale.” This is followed by this question: “Having liquors on
Prom what has been said, the leading and controlling facts upon which that case went off are so dissimilar from those in the present case that we do not regard it as a controlling authority. Not only is this record without suggestion that there was a-profit made in the disposing of the liquors in this Elks’ Lodge, which was
In the course of the opinion in that case it was said: “But it is insisted that the case of Tennessee Club v. Dwyer, 11 Lea, 452 [47 Am. Rep., 298], had adjudicated this question, and upon similar facts to these in the present record has determined that a social club, such as is the plaintiff in error, is not in the sense of the law a liquor dealer. The reasoning and authority of that case are fully recognized by the court; but we do not think its conclusions controlling in the present.” Following this statement, the court marked the difference between the two cases. There, instead of overruling the earlier case, it is said that it is recognized and approved.
We are satisfied from the uncontroverted facts in the record that the Knoxville Lodge of Elks, like the present lodge, is a bona fide association, organized for social, fraternal, and benevolent purposes, and that the furnishing of refreshments, inclusive of intoxicants, to its members, is purely incidental, and that the lodge was not engaged in the “handling of liquor for sale,” within the sense of the revenue act of 1907. Prom this it follows, of necessity, that the plaintiff in error, who was simply its employee and doing its service, was not guilty of the misdemeanor of either “selling or aiding in the sale” of “intoxicating liquors,” created by section 1 of chapter 161 of the Acts of 1899.
It may be proper to observe, in conclusion, that it is a matter of common knowledge, of which we may take judicial notice, that since the legislative enactment of the various statutes, extending from time to time the territorial scope within which intoxicating liquors cannot be legally sold, clubs have sprung up in great numbers in different localities, and obtained charters, whose
The judgment of the trial court is reversed.