Wason v. Severance

2 N.H. 501 | Superior Court of New Hampshire | 1822

Richardson, C. J.

The jury having found in this case, that the defendant sold brandy by retail, as alleged in the declaration, the question is, whether he is precluded by the license which the jury have also found, from the penalty, which the statute has imposed upon the offence of selling ardent spirits by retail without license The terms of the license found, are, it is believed, a little unusual. J. Sever* anee is thereby licensed to keep an open tavern at his house and shop on a particular day. We are not, however, aware of any ground upon which a license can be held invalid, because it is confined to a particular day. There may be occasions when a license to keep tavern on a particular day would be expedient and proper ; and it must be presumed, that the selectmen of towns will grant licenses only upon proper occasions. Selectmen ought, however, to be cautious how they grant licenses of this kind. For if granted to the injury of established public houses, merely to promote the interest of the individual licensed, without being justified by any public convenience to result from them, they can be viewed in no other light than a gross abuse of the authority by law entrusted to selectmen. In the present case, we find nothing that can lead us to doubt that it was fit and proper that a license should be granted by the selectmen to J. Severance. Nor is the validity of the license, as respects the house, affected by the circumstance that it includes the shap-If the shop was a necessary appurtenance to the house, that clause in the license was unnecessary ; because a license to keep a tavern, necessarily includes a license to use all proper buildings for that purpose. What the shop was does not appear. If it was a common store, not appurtenant to the house as a tavern, the selectmen had no authority to license it as part of a tavern ; and that part of the license was unfit, improper, and void. It is said, that selectmen aro sometimes so forgetful of their duty as to license store-keepers to keep tavern, who have in fact no intention to open a tavern, but. wish merely to avail themselves of the license to sell mixed liquors and spirits in less quantities than a pint in their stores. But it ought to be generally understood, that such licenses are shameful attempts to evade the law ; are alike disgraceful to those who give and those who receive them ; are utterly void for any such purpose, and will afford no protection from ttie penalties of the statute to those who sell mixed liquors in stores, not appurtenant to houses actually kept as taverns. But we entertain no doubt, that so far as respected the house, the license to James Severance was valid, and entitled him to all the privileges and immunities of an innholder.

(1) 1 N.H. Laws. 374.

But it is very obvious, that a license to keep tavern in a particular house, is not a license to sell brandy from benches, erected any where in the neighborhood of the house licensed. This is very clearly shewn by the provisions of the act. regulating licensed houses. The objects of that statute were, in the first place, to prevent improper persons from opening taverns ; and in the next place to prevent taverns from becoming disorderly, and nuisances to the public, by placing them under the inspection of the selectmen of the towns in which they are situated. Thus the 8th section of the statute declares, “ that it shall be the duty of “ the selectmen carefully to inspect all licensed houses, and “ in no case to license persons that keep disorderly “ houses.”(l) If innkeepers, by virtue of a license to k? op tavern, have a right to sell ardent spirits and mixed liquors at other places than the house licensed and its appendages, within the true meaning of the statute, and that by their agents, it is in vain that licenses are directed to be recorded; it is in vain made the duty of selectmen to inspect licensed houses ; for no man can know what is and what is not a licensed house. Any individual, who can obtain a license to keep tavern, may make every man, woman and child in the town his agent, and convert every house, barn and shop in town into a licensed house. Nothing can be clearer, than that this would be contrary both to the letter and spirit of the statute ; and we are clearly of opinion, that a license can avail an innholder only while acting as such within the limits of the house licensed, and its necessary appendages and appurtenances.

In the present case, the jury have found that the defendant was the agent of James Severance in the sale of the brandy ; but they have not found that the bench and the place where the sale was made had any connexion with the tavern, or that the person, to whom the sale was made, was a guest who had resorted to the tavern for refreshment. Indeed, it is not found, that a tavern was opened at all at the house or shop. James Severance was- licensed to keep tavern on the day of the annual meeting of the town in March ; and for aught that appears, his whole establishment was nothing but a bench standing near the place of the meeting, and an agent employed in retailing brandy to the electors — an establishment which cannot in law be considered as a tavern in itself, or as any necessary appendage to a tavern. We are therefore of opinion, that this is a verdict in favor of the plaintiff, and that he is accordingly entitled to

Judgment upon the verdict,