State v. Wynne, 8 N.C. 451, 1 Hawks 451 (1821)

Dec. 1821 · Supreme Court of North Carolina

8 N.C. 451, 1 Hawks 451

State v. Wynne.

From Tyrrell,

An individual who abts as an ordinary-keeper, without taking out license and giving’ bond, but who has a "license to retail spirituous liquors, may be indicted on the act of. 1798, ch. 501, for exacting’ more than the rates established by the Court of his county, apd he is estopped from denying the fact of his being a tavern-keeper.

This was an indictment against the Defendant, as an ordinary-keeper, for exacting more than the rates fixed by the County Court. The Jury returned a special verdict as follows : that the Defendant did open and keep a certain public house, in which he entertained all persons, after the manner of an ordinary and tavern-keeper, during the time and at the place mentioned in the bill of indictment3 that he obtained and had, during the said time, a license from the Court of Pleas and Quarter Sessions, to retail at his own house spirituous liquors, and did retail the same 3 but that he had not any license, nor did he enter into any bond, as required by act of Assembly, to keep an ordinary. They further find, that the rates of fare mentioned in the indictment, were established by the County Court, as the indictment charges 3 and that the Defendant, knowing the rates aforesaid, did demand and receive the several sums as charged in the bill of indictment. But the Jury are ignorant whether the . Defendant can by Law be considered an ordinary-keeper, without such license 3 they therefore pray the advice of the Court: and if the Court shall be of opinion, that the Defendant cannot in Law be an ordinary-keeper, without such license and bond as is required by actof Assembly, then they find the Defendant not guilty 3 if the Court shall be of a contrary opinion, then they find the Defendant guilty. On this finding, the Court gave judgment for the State, and passed sentence, whereupon De» fendant appealed.

Manly for Defendant

1. The Defendant is not an ordinary-keeper in Law, and therefore not chargeable at all.

jf ]ie ]3e m ordinary-keeper in Law, he is not, under the acts of Assembly, liable to be indicted for the offence charged.

3. If he be indictable, the present charge or bill is defective, and no judgment can be passed against him.

1. He is not the keeper of an ordinary or public tavern, without having first obtained a license from the County Court of Tyrrell for the purpose, and given bond and security to keep the same faithfully and properly, agreeably to the act of Assembly of 1798, ch. 18 — (Ire-dell’s Revisal.) This is the description of persons about whom the Assembly was legislating’, and for whom the justices of the respective County Courts in this State are authorised and required to establish rates of fare. These are the only public houses recognised by the Law. Defendant is expressly acquitted of this character by the verdict of the Jury, who find, “that he had not any license, nor did he enter into bond, as required by act of Assembly, to keep an ordinary.”

Nor does the finding of the Jury, that he “ obtained and had a license from the Court of Pleas and Quarter Sessions, to retail at his own house spirituous liquors, and that he did retail the same,” make him an ordinary-keeper.

The act of 1798, amendatory of the act of 1779, ch. 10, and the act of 1816, ch. 906, (JVew Revisal,') and all other acts passed upon the subject, make an evident distinction between retailers of spirituous liquors and ordinary-keepers. The very licenses themselves specify different objects, and import to be granted for different purposes. The law requires the ordinary to give bond for the proper discharge of his business, but requires none of the retailer of spirituous liquors. The same distinction is observed in the common understanding of the country, and in the universal acceptation of the terms.

But the Jury found, “ that the Defendant did open and keep a certain public house, in which he entertained all persons, after the manner of an ordinary and tavern-keeper. His was therefore a house of private entertainment, — a term well known in the country, as used to designate a house that is opened and kept upon his own responsibility, and having no other or higher claims or pretensions to the patronage of the public, and affording no other safeguard to the comfort and convenience of his guests, than such as might be derived from his own character and circumstances. A house in which lie might entertain only such persons as he chose, and give them such fare and at such prices as they could agree. A house that he could discontinue at pleasure, and at any time he pleased, which lie could not do provided iie was an ordinary-keeper under the law; for the condition of the bond* required by the act of 1798, is, that he must keep it open and constantly provided with diet, provender, &c./or one year. Therefore, the Defendant is not an ordinary-keeper in Law, aud so is not chargeable at all. But

2. If he be an ordinary-keeper in Law, he is not, under the acts of Assembly, liable to be indicted for the offence charged. The act of 1779, ch. 10, sec. 9, (Ire-dell’s Revised,') prescribes and enacts the penalty of the offence charged in the bill of indictment, to be “ a forfeiture of fifty pounds, to be recovered by the informer to his own use, before any jurisdiction having cognizance thereof.” The act of 1798, ch. 18, sec. 2, (Iredell,) and under which Defendant is indicted, for that is the last act upon the subject, is merely amendatory and cumulative of the act of ’79. — (2 Hale’s P. C. 705.)

No penalty being enacted in the act of 1798, the penalty previously established by the law of 1779 is thereby recognized, and remains the same. Defendant may therefore be sued by the informer for the forfeiture of fifty pounds, but is not indictable for the offence charged. But an offender is sometimes indictable upon ihe prohi- Utory clause of a statute, in addition to his liability to a penalty under such statute. This leads to the third argument proposed, viz.:

jf ]ie be indictable, the present charge or bill is defective, and no judgment can be passed against him. The indictment concludes, contra formam statuti. The power of fixing rates of fare to be taken by ordinaries, is vested in the County Courts by act of 1798, sec. 2 of ch. 18, that being the last act; and the prohibitory clause against an ordinary’s receiving more than the settled rates, (if there be any such clause at all,) must be contained in tiie act of 1779. But where an act relates to another, as where one makes an offence and the other a penalty, the indictment should conclude, contra formam statutorum — (2 Hále 173.)

This charge is therefore materially defective, and the State is not entitled to judgment against the Defendant.

TayIiOU, Chief-Justice.

I am of opinion, that judgment for the State was properly entered up on this special verdict. The indictment is framed on tiie act of 1798, c. 501, the second section of which, authorises the County Courts to grant licenses to keep ordinaries j and at their discretion, to withhold them from immoral persons, and those who are too poor to comply with the intent of the act. Persons obtaining licenses, are required to give bond, conditioned for providing good and wholesome diet and lodging for travellers, &c. By tiie fifth section, the justices are directed to rate, each year, the prices of liquor, diet, lodging, &c. to be taken by ordinary-keepers ; and the same section makes it the duty of the ordinary keeper to set up tiiose rates in the public room, under the penalty of twenty pounds. The Defendant violated the law, in selling for higher rates than those settled by the Court; but it is objected, that not having taken out a license, he is not an ordinary-keeper, and therefore not, indictable: butT think it would be against all principle-and authority, to allow this defence lo be available. The Defendant has held himself out to the world as an ordinary keeper: he has enjoyed more than the emoluments of one duly authorised, and has consequently assumed all the responsibilities'bf the character. To what end is the law made, if any man may set up a tavern without a license, and sell at rates established by himself ? He may be without character, and without credit, and contribute with impunity, to that de-pravation of the public morals, against which the law aims to provide. He may also impose upon the public under the colour of legal authority, and when called upon to answer for his conduct, shelter himself under his own double wrong of disobeying the law, and defrauding the revenue. I conceive that the Defendant has precluded himself in the way of estoppel, from denying the fact of his being an ordinary-keeper ; upon too same principle that, in an action against a clergyman for non-residence, the act of the Defendant as parson, and iiis receipts of the emoluments of the church, should be evidence against him that lié is parson, without requiring the Plaintiff to prove the Defendant’s title, according to the case of Berryman v. Wise, (4 Term. Rep. 306;) and the numerous cases' in the books tending to prove, that in the case of all peace officers, justices of the peace, constables, See. it is sufficient to prove that they acted in those characters, without producing their appointments—-(3 Johns. 431—6 Binney, 88—9 Mass. R. 231—Leach. Cro. C. 585.) It appears not less certain to me, that the Defendant is indictable under the act, for selling at higher rates than those established by the Court. The rule, well established on this subject is, that where a statute creates a new offence, by making unlawful what was lawful before, and appoints a particular remedy, that method, and that only, must be pursued—Cartle’s case, (Cro. Jac. 643.) But when the offence was punishable at Common Law, and the statute prescribes a particular remedy, there the prosecutor may proceed, either at Common Law, or according to the statute, because the sanction is ciimula-tive. Accordingly, it has been held, that keeping an ale-hoiise without license, was not indictable, because it was no offence ,at Common Law, and the statute which majies ^ an offence, has made it punishable by committing the party for three? days—Stephens v. Watson, (1 Salk. 45.) That case affirms the principle, that if thp statute had not directed a particular mode of proceeding, an indictment would have lain ; for where a new created offence is prohibited by the general prohibitory clause of a statute, an indictment will lie—(1 Bur. 544.) Though the act of 1798, c. 501, imposes some penalties for the neglect of other duties, it imposes none for keeping am, ordinary without a license, or for selling at illegal rates ; and it appears evidently that such omission was the effect of design, when we look at the two former acts on the same subject, 1741, in Sioan’s Mevisal, and the act of October, 1799, in both of which, a penalty is imposed for selling provisions at higher rates than those settled by the Court. The first act imposes a penalty of ten shillings, and the last a penalty of fifty pounds. A comparison of the acts will shew, that the one of 1779 was before the Legislature of 1798 \ and I think the conclusion'follows that they omitted the penalty, in order that the proceeding by indictment should be alone pursued. In the language of Lord Mansfield, “ it is to be presumed that the Legislature then knew and considered, that disobedience to an order of sessions, was an offence'indictable at Common Law”—(2 Burr. 804.)

ILtxx and Henderson, Judges, concurred.