Commonwealth v. Greenwood

• Decision Date: 23 February 1910
• Citation: 205 Mass. 124,91 N.E. 141
• Parties: COMMONWEALTH v. GREENWOOD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 124

91 N.E. 141

COMMONWEALTH v. GREENWOOD.

Supreme Judicial Court of Massachusetts, Norfolk.

February 23, 1910

COUNSEL

A. F. Barker, Dist. Atty., and F. G. Katzman, Asst Dist. Atty., for the Commonwealth.

J. J Feely and Roger Clapp, for defendant.

OPINION

SHELDON J.

It is provided by statute that the prohibition to sell intoxicating liquors shall not apply to 'sales of cider at wholesale by the original makers thereof.' Rev. Laws, c. 100, § 1; St. 1903, c. 460, § 1. Whether the sales made by the defendant were unlawful, and so brought his tenement within the terms of Rev. Laws, c. 101, § 6, might be found to depend upon whether those sales were made at wholesale or at retail.

There was evidence which would have warranted a finding that the defendant had made, as at least a part of his regular business, sales of cider of more than the prohibited strength, in small quantities, of less than a gallon, and properly could be convicted even under his contention that his sales had been only of one gallon or more. Nor do we consider that there is any peculiar sanctity in the quantity of one gallon. He might be convicted although none of his sales had been of a larger amount than that. See Pence v Commonwealth, 6 Ky. Law Rep. 113, 115. It follows that the case rightly was submitted to the jury. But it remains true that the jury may have agreed with his contention, and may have based their verdict of guilty simply upon the instruction that a sale made to a purchaser for his own consumption and not to sell again is a sale at retail, whether it is made in quantity of one gallon or more, and that a sale at wholesale is a sale made to one who has the real, or at least the apparent, purpose to sell again to his own customers.

The Legislature has not defined the sense in which it used the word 'wholesale' in this statute. We therefore must apply the rule given in Rev. Laws, c. 8, § 4, cl. 3: 'Words and phrases shall be construed according to the common and approved usage of the language; but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in the law shall be construed and understood as having such meaning.'

There is authority for the rule of construction which was given to the jury. It is supported by State v. Tarver, 11 Lea (Tenn.) 658, Webb v. Baird, 11 Lea (Tenn.) 667, Harrison v. State, 96 Tenn. 548, 35 S.W. 559, and Thibaut v. Kearney, 45 La. Ann. 149, 12 So. 139, 18 L. R. A. 596. It seems to have been one of the considerations in the mind of the court in Fawkner v. Lew Smith Wall Paper Co., 88 Iowa, 169, 55 N.W. 200, 45 Am. St. Rep. 230. It is embodied in the definition given in 30 Am. & Eng. Ency. of Law (2d Ed.) 518. It is included in the definition given by Bouvier to the words 'wholesale price,' though not in his definition of the word 'wholesale' itself.

The distinction between wholesale and retail dealers sometimes has been said to be that the former sell to the latter, while the latter sell to the general public in quantities to suit customers. People v. Platt, 92 Hun (N. Y.) 349, 36 N.Y.S. 531; Thibaut v. Dymond, 37 La. Ann. 902, 903; Koenig v. State, 33 Tex. Cr. R. 367, 26 S.W. 835, 47 Am. St. Rep. 35. But see People v. Abraham, 16 App.Div. (N. Y.) 58, 44 N.Y.S. 1077; Thibaut v. Kearney, 45 La. Ann. 149, 12 South, 139, 18 L. R. A. 596.

In Tripp v. Hennessy, 10 R. L. 129, the defendant had a license which authorized him to sell liquors at retail only. He sold to one customer 10 gallons of whisky, which he drew from a cash containing more than that quantity. It was held as matter of law that this was a sale at retail and not at wholesale, because the original parcel which the defendant had bought was opened up and divided so as to take out and sell a smaller quantity therefrom. The same view was taken in Gorsuth v. Butterfield, 2 Wis. 237.

But on the weight of authority the more important distinction between the wholesale and the retail dealer is that the former's dealings are with goods in large quantities, by the package or piece, while the latter sells in small quantities or parcels. This is the substance of the definitions given by Webster and by Worcester and in the Century Dictionary and by Bouvier. The Century Dictionary clearly illustrates the distinction by a quotation from Spencer's Principles of Biology, § 176: 'Articles which the consumer recognizes as single, the retailer keeps wrapped up in dozens, the wholesaler sends by the gross, and the manufacturer supplies in packages of a hundred gross.' It has been so held in many cases. State v. Kirkham, 23 N.C. 384, 385; State v. Cassety, 1 Rich. Law (S. C.) 90, 91; State v. Mooty, 3 Hill (S. C.) 187, 189; McArthur v. State, 69 Ga. 444, 445; Markle v. Akron, 14 Ohio, 586, 592; State v. Lowenhaupt, 11 Lea (Tenn.) 13, approved in Webb v. State, 11 Lea (Tenn.) 662; Bridges v. State, 37 Ark. 224, 226; 24 Am. & Eng. Ency. of Law (2d. Ed.) 875.

In our opinion that rule has been adopted in this commonwealth. It was said by Dewey, J., in Commonwealth...