Provo City v. Shurtliff

• Decision Date: 05 January 1885
• Citation: 4 Utah 15,5 P. 302
• Court: Utah Supreme Court
• Parties: PROVO CITY, RESPONDENT, v. GEORGE SHURTLIFF, APPELLANT

5 P. 302

4 Utah 15

PROVO CITY, RESPONDENT, v. GEORGE SHURTLIFF, APPELLANT

Supreme Court of Utah

January 5, 1885

APPEAL from a judgment of the district court of the first district. The opinion states the facts.

The cause was argued at the January term, 1884, and the judgment of the district court was reversed, EMERSON, J., dissenting. Subsequently a rehearing was granted, and, after re-argument the following opinion was delivered.

Affirmed.

Mr Arthur Brown, for appellant.

Mr. J G. Sutherland, for respondent.

TWISS, J. ZANE, C. J., and EMERSON, J., concurred.

OPINION

TWISS, J.:

This is an action brought by the plaintiff against the defendant, wherein he is charged with the violation of an ordinance of the plaintiff, entitled "An ordinance to prevent the manufacture and sale of spirituous, vinous and other intoxicating liquors as a beverage."

The defendant is charged with unlawfully selling and delivering, within the territorial limits of the plaintiff, to one E. M. Peck, Jr., in one transaction, spirituous and fermented liquors, to-wit: one glass of whisky and two glasses of beer, to be used as a beverage, in violation of the provisions of said ordinance.

The ordinance provides that druggists, upon giving bonds as therein provided, may sell such liquors as a medicine; but prohibits them from selling the same to any person whom they know, or have reason to believe, intends to use them as a beverage or to any person to be drank on the premises.

The evidence shows that one Snider and one Worsley, being in the back room of Hines' drug store, were asked by Peck, "What will you take?" That in response to such question the defendant waited upon them, and Worsley and Snider each took a glass of beer, and Peck a glass of whisky; and that Peck paid the defendant for the same.

It is apparent from the record, although not expressly stated, that the two glasses of beer and one of whisky, at the time and place, were drank by the respective persons taking them; and it was conceded at the trial, by counsel for both parties, that beer is a fermented, and whisky a spirituous liquor.

On the trial, counsel for the defense offered to show that the defendant was a clerk for, and in the drug store of R. S. Hines at the time of such sale; and that Hines had duly filed his bond, as required in the ordinance, and had received "A license from the city to sell liquors," and to transact the business of a druggist, and that the defendant was in that business in the scope of his employment.

The license offered in evidence recites that Hines, having complied with the ordinance in force relating to the licensing of druggists, was authorized "to transact his business as a druggist." It contains no provisions authorizing the sale of fermented or spirituous liquors of any kind whatever, for any purpose.

The plaintiff claims that the necessary power for the passage of this ordinance by its city council is found in Section 31 of its charter, which is as follows: "To license, regulate, prohibit or restrain the manufacturers, sellers, or venders, of spirituous or fermented liquors, tavernkeepers, dram or tippling shop-keepers, boarding, victualling or coffee-houses, restaurants, saloons or other houses or places for the selling or giving away of wines or other liquors, whether ardent, vinous or fermented."

In Logan City v. Buck, 3 Utah 307, 5 P. 564 under a charter provision precisely like this, it was held that an ordinance...