Commonwealth v. Moriarty

• Decision Date: 25 February 1942
• Parties: COMMONWEALTH v. MORIARTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 116

40 N.E.2d 307

COMMONWEALTH

v.MORIARTY.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 25, 1942.

On Report from Superior Court, Middlesex County; Williams, Judge.

Michael J. Moriarty was convicted of keeping his shop open between the hours of 7 A. M. and 1 P. M. on Columbus Day. On report to the Supreme Judicial Court.

Judgment affirmed.

Before FIELD, C. J., and QUA, COX, and RONAN, JJ.

R. F. Bradford, Dist. Atty., of Boston, for Commonwealth.

C. R. Goldstein, of Boston, for defendant.

FIELD, Chief Justice.

A complaint in a District Court charged that the defendant ‘on the twelfth day of October * * * [1940], that day being Columbus Day, did keep open his shop in * * * Cambridge, between the hours of seven o'clock ante-meridian and one o'clock post meridian, for the purpose of doing retail business therein.’ The defendant was found guilty. Upon appeal to the Superior Court the case was heard by a judge, sitting without a jury, on an agreed statement of facts, and the defendant was found guilty and sentenced. With the consent of the defendant the case was reported to this court for the decision of questions of law arising therein. G.L.(Ter.Ed.) c. 278, § 30. See Commonwealth v. O'Neil, 233 Mass. 535, 543, 124 N.E. 482.

There was no error.

General Laws (Ter.Ed.) c. 136, § 5-herein referred to as the Lord's day statute-provides that ‘Whoever in the Lord's day keeps open his shop, warehouse or workhouse, or does any manner of labor, business or work, except works of necessity and charity, shall be punished by a fine * * *.’ And G.L. (Ter.Ed.) c. 4, § 7, as finally amended by St.1938, c. 245, so far as here material-herein referred to as the Columbus day statute-provides that ‘all laws, statutes, orders, decrees, rules and regulations regulating the keeping open of retail stores on the Lord's day shall be applicable to the keeping open of retail stores on October twelfth between the hours of seven o'clock ante meridian and one o'clock post meridian.’

Material facts appearing in the agreed statement of facts include the following: ‘The defendant, at the time of the complaint, was duly licensed by the licensing authorities of the city of Cambridge as a tavern keeper within the meaning of G.L.(Ter.Ed.) c. 138, § 1, at 480 Cambridge Street, Cambridge, Massachusetts, where defendant conducted his business. The premises were outfitted with a bar and booths and seats for the convenience of his customers, who were served either at the bar or while seated in the booths. Service of alcoholic beverages to customers of the defendant were made to be drunk on the premises only, and were served either as a ‘mixed drink,’ i. e., mixed with other ingredients or ‘straight,’ i. e., without dilution but with some other nonalcoholic beverage as a ‘chaser.’ On Columbus Day, October 12, 1940, he was open to do business between the hours of eight o'clock ante meridian and one o'clock post-meridian, as such tavern keeper, which are part of the usual hours for doing business by virtue of the defendant's license as a tavern keeper unless prohibited by the statute here drawn in issue * * *. At or about eight twenty ante meridian, Cambridge police officers entered the defendant's tavern and observed five men drinking at the bar and a sale being completed.'

The facts agreed clearly warranted a finding that the defendant kept open his place of business, for the purpose of doing business therein, within the specified hours on Columbus day, 1940. See Commonwealth v. Collins, 2 Cush. 556;Commonwealth v. Lynch, 8 Gray 384;Commonwealth v. Dextra, 143 Mass. 28, 31, 8 N.E. 756. The defendant contends, however, that his place of business was not a ‘retail store’ within the meaning of G.L.(Ter.Ed.) c. 4, § 7, as amended. According to the agreed facts his place of business was a ‘tavern.’ He was duly licensed as a ‘tavern keeper’ within the meaning of G.L. (Ter.Ed.) c. 138, § 1, as amended. See St.1935, c. 253, § 1. ‘Tavern’ is therein defined as ‘an establishment where alcoholic beverages may be sold, as authorized by this chapter, with or without food, to be served to and drunk by patrons in plain view of other patrons, all entrances to which shall open directly from a public way.’ Said c. 138 is entitled ‘Alcoholic Liquors.’ Section 12 thereof, as amended, see St.1933, Ex.Sess., c. 376, § 2; St.1934, c. 121, § 2; St.1935, c. 253, §§ 2, 3, 4; St. 1936, c. 207, § 2; St.1937, c. 264, c. 331, provides under the subtitle ‘Sale of Alcoholic Beverages or Wines and Malt Beverages to be Drunk on the Premises,’ among other things, for the granting of a license to a ‘common victualler duly licensed * * * to conduct a restaurant, an innholder duly licensed * * * to conduct a hotel and a keeper of a tavern as defined by this chapter’ ‘to sell to travelers, strangers and other patrons and customers not under twenty-one years of age, such beverages [‘all alcoholic beverages or only wines and malt beverages, as the case may be’] to be served and drunk.'

The charge in the complaint is keeping open a ‘shop’ as that would is used in the Lord's day statute, G.L.(Ter.Ed.) c. 136, § 5-a statute that, so far as the use of the word ‘shop’ is concerned, has not been changed in substance in many years. See Rev.Sts. c. 50, § 1; Gen.Sts. c. 84, § 1; Pub.Sts. c. 98, § 2; St. 1895, c. 434, § 2; R.L. c. 98, § 2. In these earlier statutes, as now, the phrase ‘shop, warehouse or workhouse’ was used. Doubtless the word ‘shop’ may have different meanings when used with different contexts. But in Boston Loan Co. v. City of Boston, 137 Mass. 332, 336, where, however, the word ‘shop’ was used in a different statute from the statute here involved, it was said: “Shop,' in its popular as well as legal meaning, is not confined to a workshop. It is a word of various significance, and ‘store’ and ‘workshop’ are both included in it, and do not exhaust its meaning.' And in Commonwealth v. Riggs, 14 Gray 376, 378,77 Am.Dec. 333, where there was an indictment for larceny in a ‘building, called and being a shop,’ the court said that the building was ‘rightly denominated a shop,’ being a ‘place kept and used for the sale of goods.’ See also Commonwealth v. Annis, 15 Gray, 197, 199, 201. Moreover, in Commonwealth v. Graham, 176 Mass. 5, 6, 56 N.E. 829, 830, under the Lord's day statute then in effect, a defendant was charged with keeping open her shop on the Lord's day, and there was evidence that she, a licensed victualler, kept a restaurant open as a dining room, supplied meals to a large number of persons and sold cigars to some of them. (The sale of tobacco on the Lord's day by common victuallers was not then permitted.) The court assumed in favor of the defendant that a ‘room kept open by a common victualler merely as a dining room is not a shop’ within the meaning of the statute, but said that if ‘one of her purposes in keeping the place open was the sale of cigars, she was guilty of the offense charged.’ Closer, however, to the present case are Commonwealth v. Trickey, 13 Allen 559, and Commonwealth v. Nagle, 117 Mass. 142. In the former of these cases a conviction was sustained, under the Lord's day statute then in effect, for keeping open a ‘shop’ where the evidence showed that the defendant's place of business was kept open for the sale of liquor. In the latter of these cases a conviction was sustained under that statute for keeping open a ‘shop,’ the court saying that, under the instructions given to the jury, they must have found ‘that the defendant kept a liquor shop and bar room open for ordinary traffic with the public indiscriminately on the Lord's day,’ and that this ‘was clearly a violation of the Gen.Sts. c. 84, § 1 [the Lord's day statute then in effect], upon which the indictment is based.’ In the light of these cases it is clear upon the facts agreed that the defendant's tavern was a ‘shop’ within the meaning of the Lord's day statute. Indeed, the defendant apparently makes no contention to the contrary.

But the defendant contends that his tavern was not within the description of ‘retail stores' in the Columbus day statute. Obviously the Columbus day statute is narrower in scope than the Lord's day statute, since the former statute incorporates the provisions of the latter statute only with respect to ‘retail stores.’ The word ‘shop,’ as already pointed out, may include places of business that are not ‘retail stores' or even ‘stores.’ Some doubt as to the meaning of the word ‘store’ was suggested in Commonwealth v. McMonagle, 1 Mass. 517. But in Commonwealth v. Whalen, 131 Mass. 419, 421, where the defendant was charged with breaking and entering ‘a certain building, to wit [a] store,’ and the evidence showed that in the building in question there were dining rooms in which meals were served but in one of them there was a bar, and that lager beer and cigars were kept and sold, it was said that ‘a place in which merchandise was kept for sale’ ‘is one of the common significations of the word ‘store’ in this country.' See also Commonwealth v. Annis, 15 Gray 197, 199, 201. And in Boston Loan Co. v. City of Boston, 137 Mass. 332, 335, it was said, with reference to the use of the word ‘store’ in a tax statute, that the ‘word ‘store,’ as applied to a building and used in the statute, is intended to designate a place where traffic is carried on in goods, wares, or merchandise.' We think that the word ‘stores' in the phrase ‘retail stores' in the Columbus day statute was used with this meaning. The Columbus day statute, however, is further limited to ‘retail stores.’ The word ‘retail’ imports primarily that the sale or traffic in goods, wares or merchandise carried on in such ‘stores' shall be in small quantities. Commonwealth v. Greenwood, 205 Mass. 124, 91 N.E. 141,18 Ann.Cas. 185, and cases cited; Petros v. Superintendent of Buildings of Lynn, 306 Mass. 368, 371, 28 N.E.2d 233, 128 A.L.R. 1210.

On the facts agreed the defendant's tavern...