Sawyer v. Frank

• Decision Date: 25 October 1911
• Citation: 132 N.W. 861,152 Iowa 341
• Parties: SAWYER v. FRANK ET AL.
• Court: Iowa Supreme Court

152 Iowa 341

132 N.W. 861

SAWYER

v.FRANK ET AL.

Supreme Court of Iowa.

Oct. 25, 1911.

Supplemental Opinion. Petition for rehearing. Overruled.

For former opinion, see 131 N. W. 761.

Deemer, J., dissenting.

McCLAIN, J.

In a petition for rehearing counsel for defendants quote from standard authorities various definitions of the verb “dispense,” insisting that such definitions do not sustain the conclusion of this court holding that Frank's method of doing business constituted a dispensing of liquors within the meaning of the statute. Some of the definitions relied upon are as follows: “To deal out in portions; to distribute; to give.” Webster's New International Dictionary. “To deal out; to apportion; to distribute. To dispense is to deal out generally or indiscriminately; to distribute, to deal out to, or divide among individuals.” Worcester's Dictionary. “To deal or divide out; give forth diffusively, or in some general way; practice distribution of.” Century Dictionary. Under a charge of “selling or dispensing” intoxicating liquors in violation of an ordinance, it was held in Johnson v. Chattanooga, 97 Tenn. 247, 36 S. W. 1092, that the giving away of liquors constituted a dispensing.

Now, it appears from the agreed statement of facts that Frank in conducting his restaurant business “serves to his patrons at the above-described premises intoxicating liquors * * * to whomsoever orders and pays for the same,” the ordering being accomplished by communicating through the waiters to Frank the desire to have intoxicating liquors served, the payment being made by giving the money necessary to the waiter who fills the order in accordance with Frank's directions. We think it is plain that within the definitions above quoted Frank distributes liquors generally and indiscriminately to all his patrons as such liquors may be desired. He gives forth liquors diffusively or in some general way. He practices the distribution of liquors. In short, he dispenses liquors to all that class of persons constituting his customers who desire such liquors. We think it is true, therefore, beyond question, that Frank in the conduct of his business violates the statutory prohibition against selling and dispensing intoxicating liquors.

We are not discussing in this case the liability of a waiter who fills a paid order for a customer on his own responsibility. We are discussing the case of one who makes it a part of his business to furnish liquors to all his patrons who desire them. This distinction so clearly differentiates the case from that of State v. Smith, 135 Iowa, 523, 113 N. W. 336, the sole case now relied on for defendants. That further discussion of that case as the only authority in this state directly in point would...