Evening journal., 1914-06-11

terms embrace Clubs" and which
expressly prohibit the sale or furnish
ing of liquor by clubs without H.
censes. Under such statutes the
/ transaction of dispensing or selling
liquor is not open to construction.
and decisions under such statutes
bear remotely, If at all, upon the
/ question in this case Woollen e
Thornton on Intoxicating Liquors,
Sec. 794.
The cases decided in England and
In the English provinces are decided
under statutes, the prohibitory terms
! Of which are not distinguishable In
any material respect from the terms
of our own statute. They are in eff
feet that mo person shall sell or ex-
pose for sale. etc, except, etc, I'm
der these statutes the courts of Eng
land and of the English provinces
wherever the occasion has arisen
have uniformly held that the dis
pensing of liquor by a club to its
members for consideration paid or
promised. does not constitute a sale
Of liquor within the meaning of the
statute, but amounts merely to an
equitable mode of distributing among
the members of the club the proper
ty which they own in common Graft
VS.. Evans. l.. r. S. Q. b. Div. 1913,
! 1882. (unincorporated club; Newell
vs. Hemingway, 16 Cox. Grim. Cases
604, 1888, incorporated club; Vic
toria VS.. Union Club, Bird British Co
! lumbia. 1863, 1884, Davies VS.. Burnett,
] LIST X. b. ID. 666. 1902; Rex. VS.. Doyle,
East l.. Rep. CPr Edw Isl 81. 1910.
The theory Of the English courts
that the transaction OF dispensing H.
quor to it's members by a bona fide
club is no a sale but is a method Of
dispensing TO the members of the
club property. which is their own, has
been followed by the courts in certain
American jurisdictions with statutes
! sufficiently similar to our own TO
make them authoritative. The Amer
lean cases that hold to this theory are
the following:
People v. Adelphi Club. I49 n. Y. >,
50 n. T.. 4lO. Al l.. r. A. so. 1896;
! Klein v. Livingston Club. III Pa. 242,
% l.. r. A. "a. 1896; Seim v. State, -
Md 566 1880; Barden v. Montana
Club 10 Mont. 800 p Pac. lO42, 1891
State eX rel Columbia Club Y. McNlas
tiers. 30 ). c. /. "a $. r. 300. 1902 Rus
sci " State, l6 Pac. (WyOmingl 45l.
1911; State v. Duke 1877 $. w. Texas
! 354. 1911; Adams v. State, las $. w.
! TEX 0lO. 1912; Trezcvant v. State,
l45 S. w. TEX ll0l. 1912.
When the federal courts have been
called upon to construe the transaction
of dispensing liquor by club TO its
members they have uniformly held the
| transaction to be- a sale. 1t is con
tended however. by counsel for the de
PENDANT that the rule in the federal de-
cisions is TO be- distinguished from the
lrile to be applied in this case. upon
} the ground that the federal cases were
decided under the revenue act of the
federal government. and that. being
excise cases. all questions We're resolved
in favor of The tax. An examination of
the cases, however does not support
this contention. The federal statute re-
quires that "retail dealers in liquor
shall pay special tax of twenty-five
dollars. II this We're all of the statute
eases arising under IL would come un-
der the class OF eases decided under
statutes pertaining to the business OF
selling liquor, retail dealers. dram
shops. etc. but the federal statute goes
further and proceeds TO define who are
retail dealers in liquor" viz; Every
pcrson who sells or offers for sale" dis
TITLED spirits or wine. or malt liquors
l"shall be regarded retail dealer in
liquors." This definition takes the fed
cral cases ont OF the class in which
at first view they would seem 10 belong
and leaves open the question whether
the transaction described is such sale
as the statute prohibits. the court say
inc ON one case "The test under the
statute is. was the act a sale g. We
are therefore Of opinion. that although
the federal eases are cases arising under
. revenue state. their adjudication has
. depended upon the construction placed
, upon the transaction as a sale. We
D consider the following leading federal
e cases are authoritative citations in
support of the contention of the state;
e L.. 5. v. Wittig. Lowell iS6; u. :. v.
, Giller. "a Fed. 656; L. ). v. Alexis Club,
= rs Fed 725.
i The American state cases that hold
y the transaction to be sale, and rcpudi-
b ate the theory that the transaction is
G an equitable mode of distributing prop
q eftv among its owners decided under
s statutes with prohibitory features simi-
! iar 10 our own. some of which might
q properly be classified as device cases
q but were cited for the reasoning of the
Q courts upon the question of sale, are
b The iollowing
% Mamont y. State. rs Ind. p; state v
o Iockvcar a5 y. G. 633. 10 Am Rep. 2S1 :
o. People \, Soule. q Mich. 80. , l.. r. A.
% fof lssH: Newark " Essex Club. % \
b D. qn lSln; Nogales Club v. state
o. $50 Miss. DIS. 10 ~. 574; krnavck y
Sfafc. - Tex. Or. Ap. a., Al = W. Gl2;
{ NORMAN q. State los Ga. 700. - :. +
b. lfa. 90 g. r. A. 3qS; state y. Kline %
q Par iOrog. 237 state y. MINI. Club
b lln 81 81 ini 1909: LLOYD w. Canon
Z. ity. l03 par lColl 3SS. 1909; Spokane
; 81. k1ughmln. 1903 pac. lNash) "a
2 ida county So Boise Commo-ci1l Club
% 20 Idaho i2l MS psc. lose. 3S L. r. A.
n lN S. l0l. lolli Rothschild Y. State rs