State ex rel. Columbia Club v. McMaster, 35 S.C. 1

35 S.C. 1 | S.C. | 1892

The opinion of the court was delivered by

Mr. Justice McGowan.

The Columbia Club, relator, is a duly incorporated organization for social and literary purposes, with power to make such rules and regulations as they shall deem proper. The club rooms are situated in the city of Columbia, used exclusively by the members, andaré intended to provide for them a place where they, at small cost, can have and enjoy the privacy and privileges of a well conducted home, together with such intercourse and amusement as are consistent with the rules and objects. And to this end they established the following rules and regulations: A small library is provided and furnished with the periodicals and literature of the day. The club is governed by a president, a vice president, arid a managing committee, who are elected by the club. Among the duties of the managing committee is to provide the necessary accommodations, servants, &c., for the members, and to have a general supervision of the affairs of the club. Before any person can become a member of the club, he is required to be recommended by at least three active members, his name passed upon by the managing committee, and submittéd to the club for election. All members (except honorary, limited to seven in number, and to which only distinguished citizens of the State or of the United States are eligible), are required to pay an initiation fee and monthly or annual dues, from which sources the club is maintained. That is to say, each resident member pays an initiation fee of fifty dollars and a monthly assessment of two dollars; each non-resident, a fee upon initiation of twenty dollars and annual dues of ten dollars; a temporary member, a fee of ten dollars for three months. The membership now and at all times hereafter not to exceed one hundred and four (104) members of all classes.

It seems that among the refreshments purchased and kept on hand, with the funds of the members obtained as aforesaid, the managing committee from time to time provides a small quantity of liquors and cigars, which are in the keeping of said committee, and are distributed to the members as they require the same by the servants of the club, the members placing an amount of money, equivalent to the cost price of the article or proportion thereof so furnished, which amount is fixed by the managing committee, and is not intended for profit, but solely to cover the cost thereof, and is expended to replace the articles so consumed; but as matter of fact the same does not cover the cost, but it is necessary to maintain the articles aforesaid to use a portion of the annual dues and assessments for this purpose, &c.

On February 14, 1891, the club, by its officers, was summoned to appear before the Hon. F. W. McMuster, mayor of the city of Columbia, to answer to the charge of “doing business without a license,” in violation of an ordinance of the city. The officers of the club appeared and denied the charge and the jurisdiction of the court in the premises. The city council, however, pronounced judgment against the club, and sentenced it to pay a fine of twenty dollars, and unless the same, together with an alleged license fee of $200, was paid by February 27, then instant, ordered the chief of police to close the rooms of the club. Thereupon the relator club petitioned the Court of Common Pleas for a writ of prohibition to restrain the mayor and all officers acting under him from proceeding further in the premises, upon the grounds.that said action of the municipal court was without jurisdiction, that the city had not imposed any license fee or tax upon, the club, and in fact has no rightful authority to do so, and that the sentence of the court was wholly without authority of law.

The mayor was ordered to show cause why the writ should not be granted. The application was heard by his honor, Judge Hudson, who, among other things, found as follows, viz.: “The object of the club was not to make profit out of the liquors, but merely to cover the cost price, and thus to replenish the stock ; nor was the purpose to evade the laws either of the city or State, but the association is bona fide and governed by rules and regulations as judicious and stringent as those of similar clubs in the cities of other States. So far as the aims, objects, purposes, rules, and regulations of the club are concerned,' there is no dispute. Nothing is alleged, nor was anything attempted to be proved, derogatory to the membership or conduct of the club, but all was conceded that would allow to it a constitution and standing as free from condemnation as any similar society in any city of the land,” &c. His honor, however, held that the admitted facts “constitute a sale of liquors bjr the club,” and it was liable to pay a license fee of $200 to the city of Columbia, and therefore dismissed the petition.

The club appeals to this court, alleging error on the part of the Circuit Judge, upon the following among other grounds : 1. Because the city has no power to impose a license fee or tax upon social organizations, such as the relator. 2. Because the city has not imposed a license fee or tax upon said organization. 3. Because the sentence of the municipal court is without jurisdiction and void, in that it is not authorized by any ordinance of the city, and imposes a greater punishment than its charter allows.

The question whether social clubs, which raise the means by contribution and then distribute refeshments among its own members, are liable to a license tax for retailing spirituous liquors, has been considered by many of the courts of the country, both in England and America. The cases seem not to be in accord. We have examined many of them in the hope of being able to reconcile them, but have found it impossible to do so. We think, however, that much of the seeming conflict arises from two causes : first, where the alleged club,- as a matter of fact, is not bona fide what it purports to be, but is a mere device to evade the law against retailing without a license. In all such cases, of course, they are liable. And, second, from the difference in the terms of the various acts upon the subject, each court construing for itself the laws and regulations of its own State. In the case before us, the difficulty first above indicated is not in our way; for it has been conceded and formally found that the Columbia Club is a bona fide social organization for the uses and purposes declared in its charter.

The question then is, whether under our laws, properly construed, the city authorities of Columbia had the right to require the Columbia Club to take out a $200 license for the year 1891, and to pay a fine of $20 for not having done so. It seems that there are two kinds of licenses recognized: one to do some kind of business called a “business license,” and the other to retail liquor called a “liquor license.” With the former kind we have no concern here, for it is not alleged that the club, as such, is engaged in any kind of “trade, business, or profession.” We have to do only with the liquor license, and it seems that all the different provisions of our law upon that subject are collected in chapter LY. of the General Statutes, entitled “Of Licenses.” Section 1731 of that chapter declares that “no license for the sale of spirituous liquors shall be granted in South Carolina outside of the incorporated cities, towns, and villages of this State, and it shall be unlawful for any person or persons to sell such liquors without a license so to do.” Section 1736 of the same chapter provides that “the proper municipal authorities of all incorporated cities, towns, and villages shall have power to grant licenses to retail spirituous liquors inside the incorporate limits, &c., to keepers of drinking saloons and eating houses, apart from taverns, and to fix the price of the same, the person to whom the same is granted being first recommended by six responsible tax payers of his neighborhood, and entering into a bond in the sum of $1,000 for the keeping of an orderly house,” &c. Section 1745 provides, among other things, that “all persons engaged in retailing liquors under licenses granted in accordance with this chapter, shall expose their licenses to public view in their chief place of making sales, &c. * * * And every person taking out a license for sale of spirituous liquors as aforesaid, shall sell the same in a room fronting the public street, without any screen, curtain, or other device for preventing the passing public from fully viewing what may be transpiring within,” &c.

1 Now, considering these provisions together, what construction should be placed upon them ? They are penal in their nature, and should be strictly construed. Is it not perfectly manifest that, by the terms used, the legislature did not intend to embrace social organizations such as the Columbia Club; but, on the contrary, that the true intent and meaning of all these provisions was to include only “the keepers of drinking saloons,” &c.; that is to say, a well known class of persons who are engaged in the business of retailing liquor for a profit as a livelihood ? Rxpressio Urdus est exclusio alterius.

2 But it appears that the corporate authorities of the city, on the 22 of December, 1890, passed an ordinance “to regulate licenses for the year 1891.” which, it is suggested, supplemented the acts of the legislature upon the subject, and enlarged the power of the city in the matter of granting licenses. The seventh section of this ordinance reads as follows, viz.: “For a license to carry on any permanent or transient trade, business, or profession, the sums hereafter mentioned shall be paid into the city treasury in gold or silver coin, United States treasury notes. * * * Club liooms. All clubs or associations where liquor is disposed of for cash, checks, or otherwise, shall be required to take the regular liquor license per year, $200.” The first paragraph of this section clearly relates to business licenses, but the last paragraph, in relation to “Club Rooms,” seems to have been an attempt to make a new law as to the persons who may be required to take out liquor licenses; but it must'not be overlooked that there is no such thing as original legislative municipal authority. Incorporated cities have only the power granted’ to them by the legislature — nothing more and nothing less. Therefore this ordinance must be construed in subordination to the general law upon ,the subject. Heise v. Town Council, 6 Rich., 404; State v. Williams, 11 S. C., 292.

The question then recurs, whether the regulations adopted by the club for distributing their liquors among their own members, “constitute a sale” in the sense of section 1731 of the General Statutes, which makes it unlawful “to sell liquors without a license so to do.” As I understand it, the law does not prohibit the use of liquors, but merely regulates the sale by indicating certain persons who may sell upon certain conditions, one of which is the produ'etion of a license, which can only be procured by paying for the same a fee or tax. The club owned the liquor, and we suppose that each of its members had the right to use his part of them as he pleased. When he called for his share or any part of it, and the same was delivered to him, subject to account, can we say that was an “unlawful sale” in the sense of the law ? It seems to us that such view is very technical, and that the more reasonable construction is, that the regulations of the club amounted substantially to a method of dividing the property among its owners.

3 As before slated, the authorities upon this subject do not seem to be in accord. We must, however, decide the case according to our construction of our own laws; and, looking only for the intention of the law makers, we think the proper doctrine is announced in the text of the American and English Encyclopedia of Law (11 vol., title, intoxicating liquors, page 727), as follows: llSoeial Clubs. The distribution of liquors by a bona fide club among its members, is not ‘a sale’ within the inhibition of a liquor law, even though the person receiving the liquor gives money in return for it. It is otherwise, however, where such club is simply a device, resorted-to as a means of evading the statute” — citing in the notes numerous cases, which we will not attempt to review. See Graff v. Evans, 8 Q. B. Div., 373; Seim v. State, 55 Md., 566; Chesapeake Club v. State, 63 Id., 460; Commonwealth v. Smith, 102 Mass., 147; Com. v. Pomphret, 137 Id.. 564; Tennessee Club v. Dwyer, 11 Lea, 452; Barden County Treasurer v. Montana Club, 10 Mont., 330; Piedmont Club v. Commonwealth, 12 S. E. Rep., 963.

In Graff v. Evans, supra, Mr. Justice Field said: “In construing a statute like the present, by which a penalty is imposed, we must look strictly at the language in order to see whether the person against whom the penalty is sought to be enforced has committed any offence within the section. * * * The section must be construed by looking at the language used, and taking a large view of the object of the legislation. The enactment is limited to ‘sales’ of intoxicating liquors, and only seems aimed at sales made by retail dealers. The question is, whether Graff effected ‘a sale.’ I think not. Any member W’as entitled to obtain the goods on payment of the price. A sale involves the element of a bargain. There was no bargain here, nor any contract with respect to the goods,” &c , &c.

In Piedmont Club v. Commonwealth, supra, decided as lately as March, 1891, and the last judicial utterance upon the subject brought to our notice, the Appeal Court of Virginia unanimously held'as follows: “A club formed for social purposes allows its members only, from its stock kept for the purpose, to order liquor for himself and such friends as the rules of the club allow him to invite as guests, charging such member with liquors so ordered by him, no profit being made by the club. Held, this does not constitute a sale of liquor within the meaning of the act (Acts 1889-90, page 242) requiring license for sale of liquor, and no license is required, the charging each member for amount used by him being a mode of apportionment or assessment of the proportionate expense to be borne by him,” &c., &c. We are unable to distinguish this case from that of the Piedmont Club of Lynchburg above referred to.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the case be remanded to the Circuit Court for such orders as may be thought necessary to carry out the conclusions herein announced.