203 Ill. 127 | Ill. | 1903
delivered the opinion of the court:
The only question presented by this record is whether the facts set up in the plea, considered according to their legal effect, are sufficient to justify, the defendant in error in using its corporate powers in dispensing and furnishing intoxicating liquors to its members without first having taken out a dram-shop license according to the statutes of this State. The contention of the corporation is, that a tona fide club can dispense liquors to its members as incidental, merely, to its organization, without taking out a dram-shop license. Many cases from other jurisdictions are cited, holding this doctrine. The plaintiffs in error cite a large number of cases holding the contrary doctrine. The authorities seem to be in hopeless conflict on the subject. However, the statute of this State must govern the case.
The Dram-shop act, (Hurd’s Stat. 1901, p. 750,) in section 1, defines a dram-shop to be “aplace where spirituous or vinous or malt liquors are retailed by less quantity than one gallon,” and declares thése liquors to be intoxicating liquors within the meaning of the act. Section 2 provides that “whoever, not having a license to keep a dTam-shop, shall, by himself or another, either as principal, clerk or servant, directly or indirectly, sell any intoxicating liquor in any less quantity than one gallon * * * shall be fined,” etc. Section 7 provides that “all places where intoxicating liquors are sold in violation of this act, shall be taken, held and be declared to be common nuisances, and all rooms, taverns, eating houses, bazars, * * * or other places of public resort, where intoxicating liquors are sold in violation of this act, shall be deemed public nuisances.” Section 13 provides that “the giving away of intoxicating liquors, or other shift or device to evade the provisions of this act, shall be held to be an unlawful selling.” Other sections provide for the granting of licenses, etc.
Under the general laws of the State no person has the legal right to sell spirituous liquors without a license, and by doing so a fine is incurred, which may be collected by indictment or suit. (Kadgihn v. City of Bloomington, 58 Ill. 229.) The Dram-shop act, which took the place of similar legislation which has long been on our statute books, declares the business of selling intoxicating liquors in quantities less than one gallon to be criminal, except so far as it is expressly authorized and made lawful by license. (People v. Gregier, 138 Ill. 401.) The language of the statute is certainly comprehensive enough to include any person, natural or artificial, and any kind of a sale or device used in lieu of a sale direct. Under similar statutes much ingenuity has been expended in attempting to show that the dispensing or furnishing of liquors to members of a club by an agent of the club was not a sale, but a mere transfer of the special property of the other members to him; (Graff v. Evans, 8 Q. B. Div. 373;) was in fact only an equitable and convenient mode of distributing refreshments to its members; (Tennessee Club v. Dwyer, 11 Lea, 452;) was a delivery to the member of his part of the liquors owned by the club; (State v. McMaster, 35 S. C. 1;) was but a distribution among- the members of the club of the property that belonged to them; (People v. Adelphi Club, 149 N. Y. 5;) was a mere division, among the members, of the common stock of liquors according to a previously arranged system. (Commonwealth v. Smith, 102 Mass. 144.) We do not concur in these views, and having regard for the provisions of the statute of this State regulating the sale of intoxicating liquors, they cannot be allowed to control cases of this character. A sale is a transmutation of property from one man to another in consideration of some price or recompense in value. (2 Blackstone’s Com. 446.) It is a transfer of the absolute or general property in a thing for a price in money. (Benjamin on Sales, sec. 1.) A sale is the passing of the title and possession of any property for money which the buyer pays or promises to pay. (Kranvek v. State, 38 Tex. Cr. 44.) The word “sell” has a well known legal signification, and in the absence of anything to the contrary appearing in the statute, we must assume that it is here intended to have that signification. Siegel v. People, 106 Ill. 89.
The corporation or club, being the owner of the liquor, through its appointed agent delivers it to the member of the club on his request and receives a fixed compensation in money therefor. The property in the liquor passes to and becomes vested in the individual member, and the money paid is received for and becomes the property of the corporation. (State v. Social Club, 73 Md. 98.) If an agent is appointed by several tenants in common to dispose of real or personal property, and he does dispose of any part thereof in exchange for money, it is none the less a sale because the party paying the money and receiving such part to his own use happens to be one of the tenants in common. (State v. Neis, 108 N. C. 787.) The liquor is not the property of the member before it is separated from the common mass and delivered to him under his promise to pay for it, but the property of the company. It is not the property of the member until after the delivery and appropriation of it by him to his own use. If he should clandestinely enter the club house at night and regale himself with the liquors of the club it would not be a defense to an indictment for the offense to prove that he was a member of the corporation owning the property. Such specious defenses have received no countenance except in prosecutions for the illegal sale of ardent spirits. (State v. Essex Club, 53 N. J. L. 99.) It has been said that while the beer was in the keg it was the common property of the society, but when a portion was withdrawn and delivered to a member of the society, upon credit or for cash, the portion so withdrawn ceased to belong to the society and became the separate property of the member receiving it, and the transaction invested him with the power to drink it himself, to give it away, to sell it or to throw it away. Marmont v. State, 48 Ind. 21.
But it is not necessary to consider further the decisions of other States. This court has spoken on this subject in Rickart v. People, 79 Ill. 85. In speaking of the contention there made that the ticket-holders or parties constituting the association owned the liquors, we said (p. 90): “In that view the liquors would belong to the company as partnership stock, and the company would have no more rightful authority to sell to the individual members or partners at retail, without a license to keep a dram-shop, than a mere stranger would have. Buying tickets, as we have seen, [as in the case at bar, levying a special assessment and getting checks therefor,] was simply buying twenty drinks and paying for them in advance. Bach one paid for whatever he got, as he would have done had he bought of a. licensed seller. It is preposterous to assume that a number of persons may, with impunity, associate themselves together as a firm or volúntary company, purchase a quantity of liquors and retail them out to the several members as they would to strangers. Such an enterprise is unlawful and all concerned would be guilty of violating the statute. If such a device could be tolerated it would render all legislation on this subject nugatory.” This reasoning applies with equal cogency to a corporation. As said in State v. Shumate, 44 W. Va. 490: “Whatever may be the decisions and practice in other States, our statute is so broad as to allow no shift or device to defeat the purpose of its enactment. It plainly forbids the selling * * * by one person to another of the forbidden intoxicants, without a license; it matters not for what purpose,—literary, social or otherwise. To decide to the contrary would be to turn every saloon into a literary, social or musical club, to the entire destruction of the peace and good order of- society and the nullification of all prohibitory and revenue legislation.”
Much is said in the argument about the question whether the corporation was organized in good faith for literary, social and benevolent purposes, or was a mere “shift or device” to carry on a dram-shop without a license, and thus to avoid the statute. The demurrer admits, of course, all the facts well pleaded but does not admit the mere conclusions of the pleader, and it is apparent from the pleadings that the corporation is engaged in selling intoxicating liquors in less quantities than one gallon without license. The mere fact that such liquors are sold to its members and for a price sufficient, only, to pay their cost and the cost of serving them, can, under the statute, make no difference. As we have seen, liquors so dispensed are sold, within the meaning of our statute, and such sales without license are a violation of the Dram-shop act. In this view of the case it is immaterial whether or not the organization and management of this corporate club are a mere “shift and device” to evade the statute. In either case the statute is violated.
It may be said, however, that very strong inferences arise from the facts alleged in the information and not denied by the plea, and from the facts averred in the plea, that one of the leading objects of the formation of the club was to furnish a place and opportunities for the dispensing of intoxicating liquors, without complying with the statute, to a large class of persons desiring and who could obtain them by paying a nominal initiation fee and becoming members. No male person not a minor, a lunatic or habitual drunkard was excluded by the constitution and by-laws from membership. Such excluded persons are usually excluded from dram-shops. No real or substantial provision was made for the support of the club and to pay the salaries of the officers or attendants, except from the sales of liquors and cigars to the members. So far as we can determine from the averments of the plea, the member desiring to obtain liquor or beer suggested to the officer of the club in attendance that he, the member, should be specially assessed, whereupon such officer levied an assessment upon him in such an amount as was “mutually agreeable,” not less than one dollar, and (as alleged in the information and not denied by the plea) tickets were issued to such member, for which he paid the amount assessed and then used them in procuring such liquors. While it may be true that in the formation of the club other and laudable purposes were intended to be subserved, still we cannot avoid the conclusion reached from a careful consideration of the facts admitted by the pleadings, that one of the controlling purposes of the corporation was the purchasing and dispensing to its members of intoxicating liquors without having obtained a license to keep a dram-shop,—and this, as we hold the law to be, is a violation of the statute. It follows that the court below erred in overruling the demurrer to the plea.
The judgment will be reversed and the cause remanded, with directions to sustain the demurrer, and for such further proceedings as to law and justice may appertain. ,, , , , , 11 Reversed and remanded.