State v. Hogan

30 N.H. 268 | Superior Court of New Hampshire | 1855

Eastman, J.

In The State v. Clark, 8 Foster’s Rep. 176, we held that the Legislature may constitutionally authorize a city to enact, and a city may enact an ordinance that no intoxicating liquors shall be used or kept in any refreshment saloon or restaurant within the city, for any purpose whatever.

The question, in that case, arose upon the second section of an ordinance of the city of Concord, and is the same second section as is set forth in the case under consideration.

That decision settles the constitutionality of the ordinance ; so that the only question presented, as has been stated and argued by counsel is, whether the shop of the respondent, in which the beer was sold, was a refreshment saloon or restaurant.

Under the general law of the State for selling without license, the respondent could have been indicted, and, if found guilty, could have been fined. Comp. Stat. ch. 123, § 6. The general law applies to all places and to all persons who shall sell without license. This city ordinance applies to the particular places specified; to refreshment saloons and restaurants, and to no others. Was, then, the shop of the respondent a'refreshment saloon or a restaurant?

Whatever may be the strict and accurate meaning of these terms, and however loosely, also, they may sometimes be used, it appears to us that they have here a signification so well fixed as to make this a case not one of serious doubt.

In some sections of our country, a refreshment saloon or restaurant may, perhaps, be understood to embrace all the various places specified by the counsel for the State; and in some sections, also, a saloon, which did not contain a variety of choice liquors, would not be dignified with the name of a “refreshment ” saloon. And so, also, with a restaurant. With us, however, such is not the case. A “ restaurant ” is an eating-house ; a place where something to eat, ready prepared, or which can readily be prepared, may be obtained. “ A refreshment saloon ” is a room or rooms fitted up for purposes similar to those of a restaurant; and although spirituous liquors are frequently kept in both, •either with or without license, yet they do not necessarily form an element in the definition of either. In the case of The State v. Clark, before referred to, it was held, in addition to the decision of the constitutional question, that the keeping of liquor in a cellar, under a refreshment saloon or restaurant, is a violation of the city ordinance, the Chief Justice, who delivered the opinion, saying the cellar was as much a part of the eating-house as any other portion of the building. The learned judge, whose use of language is generally very accurate, appears to have treated the terms “refreshment saloon and restaurant” as synonymous with that of “ eating-house.”

This ordinance presupposes the existence of refreshment saloons and restaurants, independent of spirits being used and kept therein. It is against their being so used and kept in the places specified, and in contemplation that they might be so kept, that the ordinance was passed. The keeping of beer or any spirituous liquors in such places does not, therefore, make them restaurants or refreshment saloons in the eye of this ordinance; if so, it would be an ordinance against the keeping of spirits in a defined place, which would not be such a place were it not for their being so kept. If the place could not exist without the keeping of the forbidden articles, how can it be said that the articles are kept in such a place ? As well might it be said that the brick and mortar with which a house is constructed, are kept in the house. The places must first have an existence, before an offence can be committed for keeping the forbidden articles therein. And before beer can be kept in a refreshment saloon or restaurant, it must be made to appear that such a place exists.

The question, then, comes to this; is a shop which is used for the manufacture and sale of tobacco, snuff and cigars, a refreshment saloon or a restaurant ? The reply to the question appears to us quite plain, and the suggestions which we have already made will furnish the answer.

We entertain no doubt that there should be

Judgment for the respondent.