Sprekelsen v. State
| Decision Date | 22 November 1915 |
| Docket Number | 792 |
| Citation | 23 Wyo. 420,152 P. 791 |
| Parties | SPREKELSEN v. STATE |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Laramie County; HON. W. C. MENTZER Judge.
The facts are stated in the opinion.
Affirmed.
H Donzelmann, for plaintiff in error.
Plaintiff in error is a bona fide lodge organization duly incorporated maintaining a buffet wherein intoxicating liquors are dispensed to its members by and through its steward, an employee of the organization. It was not a violation of Section 2832, Comp. Stats. 1910, to sell liquor to a member without a retail license, for the reason that it is not a liquor dealer, but makes sales only to members, as an incident to the objects of its organization. There is a conflict of decision on the question, but the weight of authority, as well as the better reasoning, is on the side of plaintiff in error, who is the steward and an employee of said organization. The court erred in sustaining an objection to a question asked a witness, as to when a member's property right in liquor dispensed to him was lost. (People v. Aldephi Club, 149 N.Y. 5.) The court erred in giving instruction number 2, which was not based upon any evidence in the case. (Firmas v. State, 20 N.W. 663; Marian v. State, 29 N.W. 911; Dunbier v. Day, 11 Neb. 605; Bradshaw v. State, 17 Neb. 147.) The court also erred in giving instruction number 3 for the same reason. The court erred in refusing to give plaintiff's requested instructions numbered 1 and 2. Sec. 2832, Comp. Stats. 1910, requiring retail liquor licenses, is not applicable to Elk Lodge No. 660, in whose employ plaintiff in error was acting. The following decisions are from states where statutes and city ordinances relating to sale of liquor are quite similar to Sec. 2832: Manassas Club v. City, 121 Ala. 561; Cunzer v. Cal. Club, 100 P. 868; Seim v. Maryland, 55 Md. 566. However, in Maryland the statute was changed and thereafter the following cases were decided requiring a license: State v. Maryland Club, 66 A. 667; State v. Easton Club, 73 Md. 97. But continuing a general citation of authority, we call attention to Comm. v. Smith, 102 Mass. 144; Comm. v. Pomphret, 137 Mass. 564; Comm. v. Ewig, 145 Mass. 119; State v. St. Louis Club, 125 Mo. 308, 26 L. R. A. 573; State v. Tindall, 40 Mo.App. 271; Bardin v. Montana Club (Mont.), 25 P. 1042; Sothman v. State (Neb.), 92 N.W. 303; State v. University Club (Nev.), 130 P. 468, 44 L. R. A. N. S. 1026; People v. Adelphi Club, supra, overruling People v. Semmel, 34 N.Y. 898; People v. Bradley, 33 N.Y. 562; People v. Luhr, 28 N.Y.S. 498; Klein v. Club, 177 Pa. St. 224; Comm. v. Smith, 2 Pa. St. Ct. 474; Comm. v. Pefferman, 12 Pa. S.Ct. 202; Columbia Club v. McMaster, 28 Am. St. Reps. 826; Tenn. Club v. Dwyer, 11 Lea, 452; Moriarity v. State, 25 L. R. A. N. S. 1252; Hermitage Club v. Shelton, 104 Tenn. 101; State v. Austin Club, 89 Tex. 20; Coenig v. State, 26 S.W. 835; Winters v. State, 26 S.W. 839; Ward v. State, 116 S.W. 1154; State v. Duke, 104 Tex. 355; Peidmont Club v. Comm., 87 Va. 540, 12 S.E. 963; Graff v. Evans, 8 G. B. D. L. R. 373; Newell v. Hemingway, L. J. R. 58, Q. B. Div. 46; Davies v. Burnett, L. R. 1, K. B. Div. 666. This court apparently approved an instruction in Russell v. State, 19 Wyo. 282, to the effect that if a club was organized for a lawful purpose other than the sale of liquors and sales thereof were incidental, such club would not be required to have a dealer's license. We regard the case of Moriarty v. State, supra, as being on all fours with the case at bar.
D. A. Preston, Attorney General, and Samuel M. Thompson, County and Prosecuting Attorney, for defendant in error.
The statute is broad in its provisions and applies to clubs that sell liquors, even where sales are limited to members. The weight of authority supports this proposition. (Woolen & Thornton on Intoxicating Liquors; Joyce on Intoxicating Liquors; Ann. Cas. 1912, A-1088.) The English doctrine is to the contrary and many of the cases hinge on this distinction, hence the transaction involved here is a sale. The following authorities support our contention that the facts in this case constitute a violation of Sec. 2832, Comp. Stats.: Beauvoir Club v. State, 148 Ala. 643; Martin's Case, 59 Ala. 34. The Manassas Club case cited by counsel is not in point, as it turns upon the definition of the word "business" as used in the statute. The case of Cuzner v. Club cited by counsel is governed by the same question. A later California case, Ex parte Bond, 107 P. 143, does decide that a club, not a bona fide club, must have a license. In Colorado, clubs are required to pay a license. (Lloyd v. Canyon City, 103 P. 288; Manning v. Canyon City, 45 Colo. 571, 101 P. 973; Canyon City v. People, 121 P. 120; Army & Navy Club v. Dist. of Columbia, 8 App. D. C. 544; Morham v. State, 105 Ga. 709, 52 S.E. 143, 43 L. R. A. 398; Diel v. State, 80 S.E. 537; South Shore Club v. People, 228 Ill. 75, 81 N.E. 805, 12 L. R. A. N. S. 519; County v. Club (Idaho), 118 P. 1086; Marmont v. State, 40 Ind. 21; State v. Johns, 140 Ia. 125, 118 N.W. 295; Kentucky Club v. Louisville, 92 Ky. 309; State v. Club (La.), 12 So. 895; University Club v. Ratterman, 3 Oh. Cir. C. 18; People v. Soule, 74 Mich. 250, 41 N.W. 908; State v. Minn. Club, 119 N.W. 494.) The Nebraska case, Sothman v. State, cited by the opposition, relates to non-bona fide clubs and is not in point. In New Jersey a license is required. (Newark v. Club, 53 N. J. L. 99.) Also North Carolina. (State v. Lockyear, 95 N.C. 633; State v. Weis, 108 N.C. 787, 13 S.E. 225.) The following cases from Oregon, South Dakota, Tennessee, Washington and West Virginia hold that a license is necessary: Bachelors' Club v. State, 119 P. 339; State v. Kline, 50 Ore. 426; State v. Mudie, 115 N.W. 107; Hermitage Club v. Shelton, supra; City of Spokane v. Baughman, 103 P. 14; State v. Shumate, 44 W.Va. 490. (See also U. S. v. Giller, 54 F. 656.) The case of Moriarty v. State cited by plaintiff in error involved the question of sales of liquor for profit. The point is unimportant here, as the evidence showed the sale to have been made for profit. The Wyoming cases cited by counsel relate to non-bona fide clubs. The Idaho case of Ada County v. Club, supra, is strong and supports our contention. We deem it unnecessary to discuss the assignments of error with reference to instructions given at the trial, for if the statute applies, the instrucions were proper.
The plaintiff in error, Frank Sprekelsen, was convicted in the district court of the crime of selling whisky without a license. From that judgment he brings error.
The question to be decided is fairly and accurately stated by counsel for plaintiff in error in his brief, and is as follows: "Whether the Cheyenne Lodge No. 660 of the Benevolent and Protective Order of Elks, whose objects are to inculcate the principles of charity, justice, brotherly love and fidelity; to promote the welfare and enhance the happiness of its members; quicken the spirit of American patriotism; to cultivate good fellowship; to perpetuate itself as a fraternal organization, and to promote for its government, the Benevolent and Protective Order of Elks of the United States of America, can dispense liquor to its members, receiving either cash or a check for the same, in accordance with the regulations of the governing board of said order, and dispense such liquor by and through its steward, who was an employee of said organization, and who, in the case at bar, was the above named Frank Sprekelsen, plaintiff in error; and whether the said organization, for the dispensing of such liquor, had to have a retail liquor license under the laws of the State of Wyoming?"
There is no dispute as to the facts. The organization is a bona fide lodge of Elks, incorporated under the laws of Wyoming, owning its building, consisting of its lodge rooms, reading room, card rooms, billiard room, and a room used as a buffet, in which are kept intoxicating liquors, which are dispensed to its members only, each paying for what he orders and receives. That the furnishing of such liquors is not the principal business of the organization, but merely incidental to its objects and purposes. There is no dispute as to the sale of a drink of whisky to one of the members for fifteen cents by the steward, Sprekelsen, if such a transaction constituted a "sale" within the meaning of the statute. The statute under which the conviction was had is as follows:
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