People v. Soule

• Decision Date: 20 February 1889
• Citation: 74 Mich. 250,41 N.W. 908
• Court: Michigan Supreme Court
• Parties: PEOPLE v. SOULE.

41 N.W. 908

74 Mich. 250

PEOPLE v. SOULE.

Supreme Court of Michigan

February 20, 1889

Exceptions (before judgment) from superior court of Grand Rapids BURLINGAME, Judge.

Information against George Soule for violation of act No. 313, Pub. Acts 1887.

W J. Stuart, Pros. Atty., (Stuart, Knappen & Van Arman, of counsel,) for the People.

Eggleston & McBride, for defendant.

MORSE, J.

The respondent was informed against in the superior court of Grand Rapids for engaging in the business of selling at retail spirituous, malt, brewed, fermented, and vinous liquors without first having paid to the county treasurer the tax provided by law therefor, and without having received from the county treasurer, and posted up in his place of business, a tax-receipt; the said Soule not being a druggist etc. He was tried and convicted of the offense charged, and this case comes to this court for review on exceptions.

The facts admitted in the case, and upon which conviction was had, are as follows: "On March 5, 1888, the 'New Era Club of Grand Rapids' was duly incorporated pursuant to act No. 22 of the Public Acts of 1883 of this state, and during the month of September, 1888, said club occupied rooms in a building at No. 341 South Division street, in said city, for club purposes; that the rooms were leased by the club, at a rent of $35 per month; that respondent was a member of the club, and its treasurer and manager, in the employ of the club; that among the provisions kept by the club for its members was liquor,-spirituous, malt, brewed, fermented, and vinous,-which the respondent, as such employe, purchased for the club out of the club funds, on the order of the club, and kept in said club-room for the club, and that he, as such employe, dispensed said liquors to members of the club, as they called for it, by the glass, the members paying for the same five cents for a glass of beer or poor cigar, and ten cents for a glass of other liquor or a good cigar, and the money so received was by him placed in the treasury of the club, and used by the club to pay its current expenses and replenish the stock of the club, and that members claimed and exercised the right-as they were permitted by the rules of the club-to bring with them, to the club-room, friends who were not members, and to buy from the club stock, and give to such friends, any of said liquors by the glass, to be drank in the clubrooms, and that respondent, as employe of the club, dispensed such liquors on demand; and that such disposition of liquors and cigars was carried on throughout the whole month of September, 1888; and that neither said club, any of its members, nor said respondent paid the tax prescribed by law for engaging in the business of selling at retail spirituous, malt, brewed, fermented, or vinous liquors, nor were any of them druggists, nor was said place where said club was held a drug-store."

The superior court judge instructed the jury that a club like this, although legally organized under the laws of this state, engaged in part in purchasing liquors in quantity for the use of the club, and having it dispensed to its members by a servant of the club, they paying for it as they receive it, is as much legally bound to pay the tax and exhibit the receipt as is a retail dealer in such liquors; that the purchase of liquors by a club, and selling it out to its members at retail, for the usual prices paid therefor in saloons and bars, or the vending of such liquors to members to be presented to friends of members by way of treats, constitutes engaging in the business of selling at retail such liquors, for which the club is obliged to pay the tax, and obtain and exhibit the receipt; and that if the club was engaged in the business, as aforesaid, without having paid said tax, then its servants, agents, and employes, engaged as such in said business, if they have not paid the tax, are equally liable with their principal therefor; and, further, as follows: "Under this instruction, if you find that respondent, acting as the treasurer of this club, at the time charged in the information, kept in his possession the liquors of the club, and sold such liquors out to the members at retail, and that such club and respondent did not pay the tax required by law to be paid by persons engaged in selling such liquors at retail, and were not druggists, then the respondent would be guilty of the offense charged."

The counsel for the respondent contend: First, that the club is not liable for the tax; second, if the club is obliged, under the law, to pay the tax, the respondent cannot be held, under the evidence, as principal.

The element of bad faith in the organization of this club, which has been made to play an important part in the disposition of the main question involved here, by some of the courts, seem to be eliminated from this record. The question is fairly raised whether a club properly organized, and in good faith, under act No. 22 of the Public Acts of 1883, can distribute liquors among its members, receiving pay for such liquors as they are distributed by the glass, the proceeds to go into the treasury of the club, to be used in purchasing other liquors or in paying expenses, without being liable under the laws of this state to pay a retail tax for selling such liquors. There is a diversity of opinion among the authorities on this question.

Before examining the same, it seems to us to be proper to examine the policy of our present laws on the subject of the sale of intoxicating liquors. In 1875 the legislature repealed the prohibitory law, which had been on trial for 20 years, and adopted in its stead the principle of restriction and taxation of the liquor traffic. This method of dealing with the sale of liquors has prevailed up to the present time. This club was formed in March, 1888, while the local option law, since declared inoperative by this court, was upon the statute books, and apparently liable to enforcement. It cannot, however, in the light of this record, be said that this club was organized for the express purpose of evading this law, nor is it to be considered in the determination of this case. The local option law was never in force for a moment in Kent county, and no election was held or called under that act. The tax law was in full force and effect at the time of the organization of this club, and at the time of the sales of liquor complained of in this prosecution. The law provides for the payment of a tax by retail dealers in liquors, and a retail dealer is defined as follows: "Retail dealers of spirituous or intoxicating liquors, and brewed, malt, and fermented liquors, shall be held and deemed to include all persons who sell any of such liquors by the drink, and in quantities of three gallons or less, or one dozen quart bottles or less, at any one time, to any person or persons." Section 2, act No. 313, Pub. Acts 1887. Upon the "business of selling" liquors at retail, the tax is fixed at $500 per annum. Any person or persons engaged in the business of selling liquors without the payment of the tax in full are deemed to be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not more than $200 and costs of prosecution, or by imprisonment in the county jail not less than 10 days or more than 90 days, or both such fine and imprisonment, in the discretion of the court. Section 7, act No. 313, Pub. Acts 1887. This provision of the law was not aimed at saloons or public bars alone, but it is further provided in the act that "all saloons, restaurants, bars in taverns or elsewhere, and all other places, except drug-stores, where any of the liquors mentioned in this act are sold or kept for sale, either at wholesale or retail, shall be closed on the first day of the week," etc. Section 17, act No. 313, Pub. Acts 1887.

It must be held, I think, that the liquors purchased and kept by this club were, before they were dealt out to the members, the property of the corporation. When the liquor was passed by the agent of the corporation, the respondent in this case, over to the individual member, it became his property, and was a sale to him, as he paid for it when it was delivered to him. He could then do with it as he pleased,-drink it himself, give it to a friend to drink, or throw it away. Being sold within the quantity prescribed by statute, it was a sale by retail, and, the corporation or its agent making a business of it, the sales constitute the "business of selling" by retail. The law includes all persons, and the places of sale prohibited without the payment of the tax are not limited. It reaches a club-house or a private house, as well as a saloon or tavern. The object of the law is to tax the business wherever found, or by whom carried on.

We are cited to some cases which are supposed to support the contention of respondent, which we will now notice. The supreme court of Massachusetts has twice passed upon similar organizations. In the first case, "several members formed a club, of which the defendant was a member. They advanced a certain sum of money each, which was put into a common fund. The defendant was chosen agent of the club, and under instructions of the club, purchased liquors and refreshments for the club. The fund was taken by the defendant, and invested for them, and a certain number of checks, of the amount of five cents each, were delivered to each member of the club, to the extent of the money advanced by each. These checks were transferable only to other members of the club. Upon presentation of the checks by any member to the defendant, he would deliver to that member liquor of the club to the amount of the checks presented." Upon "distributing" the liquor in this manner, it was calculated that the...