Manning v. Canon City

• Decision Date: 03 May 1909
• Citation: 45 Colo. 571,101 P. 978
• Parties: MANNING et al. v. CANON CITY.
• Court: Colorado Supreme Court

101 P. 978

45 Colo. 571

MANNING et al. v. CANON CITY.

Supreme Court of Colorado, En Banc.

May 3, 1909

Error to Fremont County Court; Jas. L. Cooper, Judge.

Frank Manning and others were convicted of selling intoxicating liquors in violation of an ordinance, and they bring error. Affirmed.

See also, 43 Colo. 144, 95 P. 537, 17 L.R.A. (N. S.) 272.

Chas E. Waldo, C. C. Dawson, and Jas. A. Stump, for plaintiffs in error.

Taylor & Sayre, for defendant in error.

STEELE C.J.

The defendants were found guilty of a violation of section 1 of an ordinance of the city of Canon City which is as follows 'Section 1. Whosoever by himself or another either as principal, clerk, agent or servant, shall sell or dispose of or shall give away for the purpose of avoiding any of the provisions of this ordinance, any intoxicating, spirituous, malt, vinous, fermented or mixed liquors within the corporate limits of this city, or within one mile beyond the outer boundaries thereof, shall be fined not less than one hundred ($100) dollars, nor more than three hundred ($300) dollars for each offense; provided that this ordinance shall not apply to regularly licensed druggists, who may have a permit from the city council to sell such liquors, when sold in accordance with said permit.' From the judgment the defendants appealed.

The single assignment of error is that, 'under the law and the evidence in this case, no judgment against plaintiffs in error or any of them can be sustained, but that the judgment rendered therein is contrary to law, under said evidence.' The defendants constitute the board of control of the Elks' Club of Canon City. The club is a part of and under the control of the Canon City Lodge of the Benevolent Protective Order of Elks of the United States of America. The membership of the order is in excess of a quarter of a million persons, and it, through the subordinate lodges, maintains clubs in many of the towns and cities of the country, and there are clubs of the order maintained in most of the important cities and towns of this state. This club is a bona fide club, and, as found by the court below, is composed of about 400 substantial and respectable citizens of Canon City. It is maintained for the entertainment, pleasure, and benefit of the members of the order, and any member of the order, whether a resident of Canon City or elsewhere, is entitled to the privileges of the club. The club is supplied with newspapers, magazines, and such reading matter as the management may deem advantageous or desirable for the members. It maintains billiard, pool, and card tables. Food and liquors are dispensed to such of the members as may desire them. In short, it is a social club, like any other social club to be found in the larger towns and cities of the country; the dispensing of liquors being a mere incident to, and not the object of, the organization. It is an unincorporated association. No visitor or guest of a member is permitted to spend money in the club, but the member introducing the visitor or guest is responsible for his guest's entertainment. The club keeps on hand a supply of the various kinds of intoxicating liquors, which it dispenses to its members and guests, and the members of the order, at the rates fixed by the board of control. Those to whom liquors are supplied may pay cash or have the amount charged. The amount received from the members for the liquor goes to replenishing the supply of liquors and defraying the expenses of the club.

Section 4403, subd. 18, Mills' Ann. St., grants to cities and towns the right, subject to the laws of the state, to license, regulate, or prohibit the sale or giving away of intoxicating liquors; and it is contended that, in so far as the ordinance prohibits the disposal of intoxicating liquors, it is in excess of the powers granted by the Legislature to the city. We shall not determine the question for reasons which will presently appear, but shall confine our discussion of a determination of the question whether the dispensing of liquors by the defendants in the clubroom is or is not a sale within the meaning of the statutes and the ordinance in question.

It is contended by counsel for defendants that the process by which members of the club obtain the title to a quantity of liquor, to be disposed of by the individual as he may desire, is not a 'sale,' but a mere distribution of the liquor of the club among its members. On the other hand, it is contended by the city that such process is a sale and is within the prohibition of the ordinance, and upon a determination of these propositions the whole controversy depends. If such disposing of liquors constitutes a sale, then the defendants were legally convicted, and the judgment should stand; otherwise, the judgment should be reversed and the defendants discharged.

The decisions are in irreconcilable conflict. In the decisions where courts hold that clubs are exempted from the license laws, it is generally because of some peculiar word or phrase contained in the statute, and it should be noted that no case is presented where a prohibition statute has been construed as exempting social clubs from its operation. In the case of State v. Kline, 50 Or. 426, 93 P. 237, decided in 1907, and the latest case we have seen on the subject, Mr. Justice Moore, in the course of the opinion, said: 'In the note to the case of Barden v. Montana Club, 24 Am.St.Rep. 27, immediately following the excerpt hereinbefore quoted, the editors of that valuable series of case laws make the following observation, as deducible from an examination of adjudications applicable to the inquiry, to wit: 'The question whether or not the furnishing of intoxicating or fermented liquor by a club to its members in the manner above stated constitutes a sale in violation of laws prohibiting sales, or whether or not it constitutes a sale within the meaning of a law requiring a license before one can engage in retailing such liquor, has been the subject of various and conflicting decisions by a number of the appellate courts of the country. While the cases cannot be reconciled, the current as well as the weight of authority is undoubtedly in favor of the rule that the distribution and consumption of liquors in a club by its members in the manner above stated is a sale, and a violation of laws of the nature stated.' Several cases are cited, and quotations therefrom are contained in the note that fully sustain the conclusion thus reached, and we adopt that part of such deduction as relates to the disposal of intoxicating liquor by a club to its members in violation of the provisions of a local option law, without further calling attention to the cases relied on.'

In the case of South Shore Club v. People, 228 Ill. 75, 81 N.E. 805, 12 L.R.A. (N. S.) 519, 119 Am.St.Rep. 417, decided in 1907, it is held that a social club where liquors are dispensed to its members is a dramshop, within the statute, which defines a 'dramshop' as a place where spirituous, vinous, or malt liquors are retailed by less quantity than one gallon. In the course of the opinion, the court said: 'The liquor belongs to the corporation as a legal entity, and no member owns any share of the liquor, as a tenant in common or otherwise. An association organized merely for social, literary, scientific, or political purpose, although not incorporated, is not a partnership. A member of such an association has no individual right or interest in the property and owns no proportionate share of it, but only has a right to the joint use so long as he continues to be a member. Even if they were tenants in common, a transfer of a specific part of the property to one for a stipulated price would be a sale.' This decision adheres to the former opinion of the court, and holds that it is immaterial whether the club is or is not bona fide, and quotes with approval the language of the court in 73 Md. 20 Atl., 10 L.R.A., and says: 'We agree with the views expressed in State v. Easton Social, Literary and Musical Club, 73 Md. 97, 20 A. 783, 10 L.R.A. 64, that there is no occasion to be astute and to indulge in questionable refinements in order to relieve these corporations of the just consequences of their acts, or to endeavor by artificial or fictitious reasonings to permit persons in combination to do what individuals without combination could not do.'

In the case of People v. Law & Order Club, 203 Ill. 127, 67 N.E. 855, 62 L.R.A. 884, it is held that the dispensing of intoxicating liquors by a social club to its members, without having a license, is a violation of the dramshop act, and that the fact that the club was organized in good faith, for social and benevolent purposes, and not as a shift or device to evade the provisions of the law, is not material.

The earlier decision of Maryland (Seim et al. v State, 55 Md. 566, 39 Am.Rep. 419) held that the dispensing of...