Ada County v. Boise Commercial Club

• Decision Date: 01 November 1911
• Citation: 118 P. 1086,20 Idaho 421
• Parties: THE COUNTY OF ADA, Respondent, v. BOISE COMMERCIAL CLUB, a Corporation, Appellant
• Court: Idaho Supreme Court

118 P. 1086

20 Idaho 421

THE COUNTY OF ADA, Respondent, v. BOISE COMMERCIAL CLUB, a Corporation, Appellant

Supreme Court of Idaho

November 1, 1911

INTOXICATING LIQUORS-SALE-LICENSE-SOCIAL CLUBS-ENFORCEMENT OF LAW.

(Syllabus by the court.)

1. Under the provisions of Rev. Codes, sec. 15, "words and phrases are construed according to the context and the approved usage of the language."

2. Rev Codes, sec. 16, provides: "The word 'person' includes a corporation as well as a natural person."

3. The word "person" as used in Rev. Codes, sec. 1506 includes corporations of all character and kinds, whether organized as such for profit or social advantages without profit.

4. Where a social club, organized as a corporation under the general laws of the state governing social and religious corporations, keeps intoxicating liquors at the clubrooms and delivers to members such quantity of liquor as the member may request, for which the member pays in cash or gives a card to have the same charged to his account, and thereafter pays such account, and pays or agrees to pay the price fixed by the club, the liquor being purchased to be drank upon the premises, and such liquor being kept and sold as a mere incident to the general objects and purposes of the club such club is subject to the provisions of Rev. Codes, sec 1506, and is required to procure a license.

5. The word "sell" as used in sec. 1506 of the Rev. Codes has its ordinary and common meaning and was intended by the legislature to mean the transfer of title to intoxicating liquor by valid agreement, from one party to another, for some consideration.

6. Where a commercial club is organized as a corporation organized "to advance by social intercourse and friendly exchange of views, the commercial prosperity and growth of Boise City and the state of Idaho; to encourage the establishment of manufactories and other industries; seek remunerative markets for home products; foster capital and protect labor, mutually interested in each other's welfare; collect and disseminate valuable agricultural, manufacturing and commercial information; extend and develop trade, agriculture, merchandise, banking, mining, smelting, livestock and wool-growing pursuits, and to do any and all things necessary to promote the growth and development of Boise, and the state of Idaho," and such club, by its rules and by-laws, maintains a stock of intoxicating liquors sufficient to fulfil the wants of its members and their guests, purchased by the club at wholesale prices, and supplied to the members and their guests exclusively, without pecuniary profit to the club, in small quantities or in individual drinks, to be consumed by such members and their guests within the clubrooms, merely as incidental to the main objects and purposes of the club, such distribution of liquors by such club is a sale within the meaning of the provisions of Rev. Codes, sec. 1506.

7. Where a social club is organized as a corporation and keeps in stock intoxicating liquors for disposition to its members and their guests for a consideration, as incidental to the main objects and purposes of the club, the ownership and the property interest to such liquor is in the club and not in its members, until after the members have purchased such liquor for their own use.

8. It is an elementary principle that the neglect or failure of public officers to do and perform their duty as required by law will not estop the public or prevent any rights or acts of the state in enforcing its laws, and the failure of public officials to collect a revenue license, where such is required by law, for a number of years, is not sufficient evidence of the intent of the legislature in passing such law to exclude from its operation persons and corporations from whom such officers have failed to collect such revenue license.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.

An action to collect a license under the provisions of Rev. Codes, sec. 1506. Judgment for plaintiff. Defendant appeals. Affirmed.

Judgment of the trial court affirmed. Costs awarded to the respondent.

R. H. Johnson, Lynne F. Clinton, and Chas. M. Kahn, for Appellant.

The legislature never intended to have sec. 1506 or any of the so-called liquor statutes apply to such institutions as the Boise Commercial Club prior to the local option law of 1909. (Cuzner v. California Club, 155 Cal. 303, 100 P. 868, 20 L. R. A., N. S., 1095; Klein v. Livingston Club, 177 Pa. 224, 55 Am. St. 717, 35 A. 606, 34 L. R. A. 94.)

"If the club is organized and conducted in good faith with a limited and selected membership, really owning its property in common and formed for literary, social, artistic, or other purposes to which the furnishing of liquor to its members would be merely incidental, then it cannot be considered as within either the purview or letter of the law." (Black on Intoxicating Liquors, sec. 142.)

Where the furnishing of intoxicating liquors is without profit to the club and merely incidental to the main purpose of its organization, such furnishing will not constitute a sale within the meaning of statutes prohibiting sales without a license. (17 Am. & Eng. Ency. of Law, 361; 23 Cyc. 117; Graff v. Evans, L. R. 8 Q. B. Div. 373; Commonwealth v. Smith, 102 Mass. 144; Com. v. Pompherte, 137 Mass. 564, 50 Am. Rep. 340.)

An express statutory enactment of the legislature is necessary to bring the Boise Commercial Club under the provisions of sec. 1506. (Commonwealth v. Ewig, 145 Mass. 119, 13 N.E. 365; Commonwealth v. Geary, 146 Mass. 139, 15 N.E. 363.)

"The fact that a payment was made does not change the character of the act, for it was but the means adopted by which each member could receive his own and not that belonging to his fellow-member." (People v. Adelphi Club, 149 N.Y. 5, 52 Am. St. 700, 43 N.E. 410, 31 L. R. A. 510; State ex rel. Bell v. St. Louis Club, 125 Mo. 308, 28 S.W. 604, 26 L. R. A. 573; Seim v. State, 55 Md. 566, 39 Am. Rep. 419; Piedmont Club v. Commonwealth, 87 Va. 541, 12 S.E. 563; State v. McMasters, 35 S.C. 1, 28 Am. St. 826, 14 S.E. 290; Manassas Club v. Mobile, 121 Ala. 561, 25 So. 628; State v. Austin Club, 89 Tex. 20, 30 L. R. A. 500, 33 S.W. 113; Koenig v. State, 33 Tex. Cr. 367, 47 Am. St. 35, 26 S.W. 835; Tennessee Club v. Dwyer, 11 Lea (Tenn.), 452, 47 Am. Rep. 298; Barden v. Montana Club, 10 Mont. 330, 24 Am. St. 27, 25 P. 1042, 11 L. R. A. 593; State v. Boston Club, 45 La. Ann. 585, 12 So. 895, 20 L. R. A. 185; State v. Moriarity (Tenn.), 124 S.W. 1016, 25 L. R. A., N. S., 1252.)

C. P. McCarthy, B. S. Crow, and Raymond L. Givens, for Respondent.

The property in the liquor is transferred from one person to another, from an artificial person, a corporation, to an individual; a price is paid by the one receiving the liquor, and after the liquor is so transferred, the one receiving it owns it absolutely, while before the transaction the corporation owned it absolutely.

The same rule applies to an unincorporated club or association. (South Shore Country Club v. People, 228 Ill. 75, 119 Am. St. 417, 81 N.E. 805, 12 L. R. A., N. S., 519, 10 Ann. Cas. 383; 25 Am. & Eng. Ency. of Law, 2d ed., 1135; Manning v. Canyon City, 45 Colo. 571, 101 P. 981, 23 L. R. A., N. S., 192; U.S. v. Alexis Club, 98 F. 725; City of Spokane v. Baughman, 54 Wash. 315, 103 P. 14; State v. Minnesota Club, 106 Minn. 515, 119 N.W. 498, 20 L. R. A., N. S., 1101; People v. Soule, 74 Mich. 250, 41 N.W. 908, 2 L. R. A. 494; State v. Essex Club, 53 N.J.L. 99, 20 A. 771; State v. Easton Club, 73 Md. 97, 20 A. 784, 10 L. R. A. 64; State v. Mudie, 22 S.D. 41, 115 N.W. 107; Martin v. State, 59 Ala. 34; Beauvoir Club v. State, 148 Ala. 643, 121 Am. St. 82, 42 So. 1040; Marmont v. State, 48 Ind. 21; State v. Mercer, 32 Iowa 405; State v. Lockyear, 95 N.C. 633, 59 Am. Rep. 287; State v. Horacek, 41 Kan. 87, 21 P. 204, 3 L. R. A. 687; Kranavek v. State, 38 Tex. Cr. 44, 41 S.W. 612; State v. Neis, 108 N.C. 787, 12 L. R. A. 412, 13 S.E. 225; Mohrman v. State, 105 Ga. 709, 70 Am. St. 74, 43 L. R. A. 398, 32 S.E. 143; State v. Boston Club, 45 La. Ann. 585, 12 So. 895, 20 L. R. A. 185.)

The laches of a public officer in the performance of his official duties cannot estop the public or waive any of the governmental rights of the government by which such officer is employed. (19 Cent. Dig., c. 2109, sec. 151; Spokane v. Baughman, 54 Wash. 315, 103 P. 14.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This case is submitted on an agreed statement of fact, to wit:

"1. The defendant Boise Commercial Club is now and ever since the month of February, 1906, has been a corporation organized under Chapter VIII, Title 4, of the Civil Code of the Revised Statutes of 1887, relating to religious, social and benevolent corporations, and has no capital stock and is not conducted for pecuniary profit.

"2. That the purposes for which the defendant is organized are 'to advance, by social intercourse and friendly exchange of views, the commercial prosperity and growth of Boise City and the state of Idaho; to encourage the establishment of manufactories and other industries; seek remunerative markets for home products; foster capital and protect labor, mutually interested in each other's welfare; collect and disseminate valuable agricultural, manufacturing and commercial information; extend and develop trade, agriculture, merchandising, banking, mining, smelting, livestock and wool-growing pursuits, and to do any and all things necessary to promote the growth and development of Boise and the state of Idaho.'

"3. That the principal place of business of the defendant is in the city of Boise, county of Ada, state of...