Moriarty v. State

• Decision Date: 11 December 1909
• Citation: 124 S.W. 1016
• Parties: MORIARTY v. STATE.
• Court: Tennessee Supreme Court

Page 1016

124 S.W. 1016

MORIARTY v. STATE.

Supreme Court of Tennessee.

December 11, 1909.

Error to Criminal Court, Knox County; T. A. R. Nelson, Judge.

Dan Moriarty was convicted of selling intoxicating liquors without a license, and he brings error. Reversed.

J. K. Green, J. W. Culton, S. G. Heiskell, and J. C. Harris, for plaintiff in error. Asst. Atty. Gen. Faw, for the State.

BEARD, C. J.

The plaintiff in error, upon an indictment charging him with unlawfully selling intoxicating liquors without license, was convicted, and a fine of $100 was assessed against him, and it was adjudged that, in addition, he be confined in the county workhouse for six months.

The facts on which this conviction was made are, briefly, as follows: The Benevolent & Protective Order of Elks of the United States of America is a fraternal benevolent and social organization, with about 1,100 subordinate lodges, consisting of near 400,000 members, located in the different parts of the United States. One of these lodges is known as the Knoxville Lodge of Elks, No. 160. This lodge is incorporated under the laws of Tennessee, with its situs in the city of Knoxville, in this state, and has a membership of several hundred. It also has a large building in the city of Knoxville, fitted up for the convenience and comfort of its members, and having all the appurtenances of a social club. Within this building and a part thereof is a small room equipped and used as a buffet, where members of the lodge, and no one else, could obtain refreshments, including intoxicating liquors. All the supplies used in this buffet were furnished by and were the property of the lodge. The trustees of the lodge employed the plaintiff in error as steward, whose duty it was, among other things, in the operation of this buffet to serve the members, upon the presentation of printed checks, theretofore purchased by them from the lodge, intoxicating liquors. These checks had stamped upon them: "Good for service only, and not transferable." Each of these checks represented the price of one drink, and this price, fixed by the lodge, was the equivalent only of the cost of the drink, with that of "service" added. The furnishing of a drink to one of the members of the lodge by plaintiff in error in exchange for one of these checks is the basis of this indictment and conviction.

It is proper to say that there is no claim on this record that this lodge is not organized under the statute as a bona fide one for social and benevolent purposes, or that its charter was obtained as a cloak or device to serve its incorporators and members in the sale and purchase of intoxicants, in evasion of the law prohibiting such sales without license. Upon these facts, the question is: Was the plaintiff in error guilty of the offense charged?

Within the last few years many cases of a similar character to the present have reached a number of the courts of last resort in this country, and it will be found upon examination that the opinions of these courts on the question involved are irreconcilable. Thus it has been held in one class of these cases that a bona fide social club, organized for the purpose of establishing a library in connection with the clubrooms for social enjoyment, may serve its members and their invited guests with intoxicating liquors, the members only paying therefor, the money so received being used to replenish the stock, but insufficient for that purpose, without being liable to pay license required from retail liquor dealers. State v. Austin Club, 89 Tex. 20, 33 S. W. 113, 30 L. R. A. 500; Piedmont Club v. Com., 87 Va. 540, 12 S. E. 963.

There is still another class in which it has been held that the dispensing of intoxicants to its members by a bona fide social club, where the liquors are held in common, is not a sale of liquors within the meaning of the license laws. State ex rel. Bell v. St. Louis Club, 125 Mo. 308, 28 S. W. 604, 26 L. R. A. 573; State ex rel. Columbia Club v. McMaster, 35 S. C. 1, 14 S. E. 290, 28 Am. St. Rep. 826.

In Barden v. Montana Club, 10 Mont. 330, 25 Pac. 1042, 11 L. R. A. 593, 24 Am. St. Rep. 27, it was held that a social club, by reason of keeping a bar and furnishing liquor to its members and invited guests, where such liquor was not sold for a profit, and the club was not a device for evading the laws as to the sale of such liquors, was not subject to the license tax imposed by the statute on "all persons who deal in, sell or dispose of" intoxicating liquors.

On the other hand, there are a number of courts of high character holding, as did the Supreme Court of Illinois, in South Shore Country Club v. People, 228 Ill. 75, 81 N. E. 805, 12 L. R. A. (N. S.) 519, 119 Am. St. Rep. 417, that "an incorporated social club, organized in good faith for pleasure, social recreation, and outdoor sports, with a limited membership, a clubhouse elaborate in its appointments, including library, reading room, card and billiard rooms, dining room, and restaurant, with outside conveniences for exercise and sport, and a place where intoxicating liquors were dispensed to and paid for by the members, without profit," was within the statute requiring a license "to conduct a dramshop." In line with that case may be cited Martin v. State, 59 Ala. 34; State v. Nels, 108 N. C. 787, 13 S. E. 225, 12 L. R. A. 412; Army & Navy Club v. District of Columbia, 8 App. D. C. 544; Mohrman v. State, 105 Ga. 709, 32 S. E. 143, 43 L. R. A. 398, 70 Am. St. Rep. 74. A full citation of cases on this subject, with an editorial review of the same, showing the varying views of the different courts, will be found in the notes to the South Country Club Case, supra, reported in 12 L. R. A. (N. S.) 519, and to Barden v. Montana Club, supra, 24 Am. St. Rep. 27. An examination of the cases will show that, while all are determined with regard to existing statutes, yet, in those involving the dispensing of intoxicants for a price to members and guests in a bona fide club, that the real conflict grows out of the different views entertained by courts as to what constitutes a "sale," within statutes requiring payment of a privilege tax for retailing intoxicants. All the authorities agree in holding that, where clubs are formed for the evident purpose of evading the liquor laws, such course will not be tolerated; so it is, that these cases cannot be placed on one side or the other in a controversy involving the statutory right of a bona fide club to dispense intoxicants for a price to its members.

Mr. Black, in his recent work on Intoxicating Liquors (section 142, p. 185), after a review of the authorities, sums up and concludes as follows: "Upon the whole, therefore, notwithstanding some conflicting rulings, the rational conclusion is that the intent must govern. On the one hand, if the object of the organization is merely to provide the members with a convenient method of obtaining a drink whenever they desire it, or if form of membership is no more than a pretense, so that any person, without discrimination, can procure liquor by signing his name in a book, or buying a ticket or a chip, thus enabling the proprietor to conduct an illicit traffic, then it falls within the terms of the law; but, on the other hand, 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 social, literary, artistic, or other purposes, to which the furnishing of liquors to its members would be merely incidental, in the same way and to the same extent that the supplying of dinners or daily papers might be, then it cannot be considered as within the purpose or the letter of the law."

Coming, now, to our own decisions, the first case in which the question here involved was considered is that of Tennessee Club v. Dwyer, 11 Lea, 452, 47 Am. Rep. 298. The Tennessee Club, of Memphis, was a social club, organized under Acts 1875, c. 142, § 1,...