Evening journal., 1914-06-11

blance to ours that the cases are with /
out weight in aiding OF controlling our
conclusions in the case in hand.
There are statutes OF many other
jurisdictions which do not fatty inhibit
the sale OF liquor as does our statute,
but which prohibit certain businesses in
connection with the sale of liquor, ex
cept by license etc. Such statutes are
construed to extend only to the parucu-
lar things for which they were enacted
and when they do not include clubs, the
courts very naturany hold that sale
by club is not an Oilensc against such
a statute Thus when the prohibition
OF a statute extends only to the sale OF
liquor without licenses by those en-
gagged in "the business of selling liz
uor,' retail Dealers "&amshopkeep
ers,' "tppGng houses, selling by re
tail in which occupations or trades a
bona tide club Is not by expression and
cannot by implication be included the
courts construe the statutes to mean
what they say and exclude sales by
clubs from their operation. Thus in
Missouri the act is known as the Dram
shop Act n dramshop keeper is defined,
the law prohibits the sale of liquor by
a dramshop keeper without a license.
The defendant was bona fde incorpo.
rated social club, at which liquors were
dispensed, or IL may be, sold but such
a club was not a dramshop within the
given definition of the act and against
n sale of liquor by such an organization,
there was no law; therefore the sale or
dispensing of liquor by club was held
not TO be a sale within the meaning OF
the Dramshop Act,
While there is logic and consistency
in such rulings, they are made under
statutes the prohibitory features OF
which do not extend to the sale of liq-
nor in the sense in which our statute
employs that term, and therefore
should be eliminated from our consider
alton Cases under such statutes have
been cited, however. by both sides TO
this controversy for the reasoning en-.
ployed by the courts upon what consti
tutes a sale.
Cases under such states holding III
transaction no sale, Piedmont Club v.
state, 81 Va. Sal, - S. r.. 063. 1891
Tenn. Club v. Dryer. II Lea (Tenn)
462, 1888; State cX rel Columbia Club
v. McMasters, 30 S. Carolina !. "a S. Il.
300. 1892; State ex rel Bell v. st. Louis
Club, l25 Mo. 30S, % l.. X. A. 573,
1894; state v. Austin Club. 30 l.. r. A
tTeXas) 500; Moriarity v. State, l24 y.
w. 1915; koenig v. state, 90 S. W.
S35, 1894: Gunner v. California Club.
1855 Cal 1903, 1909 MERGED County v.
Kelvin, l02 Cal. l59, 36 pac. 800. 1894
state v. University Club, 1870 Pac. 1853
Cases under the same kind of stat.
aaNa l..N. Naaaa az
v. Shumate, % S. n. (W. Va. 1901
1898 lretailingl; State " Gepi. 10 So
tLa) 4GS, 1896 (place of public bust.
ness); state " Law and Order Club,
203 III. 1877, 81 l.. r. A. SS4 1913
(dramshop) South Shore Country
Club v. People, 22S m. "a: 81 ~ E.
sos; - l.. r. A. n. S. $40. 1907 tdram-
shopl State v. Nude, ll5 n. w. Is. d.
lO7, tengaging in business of selling
/ liquorl State v. Soule, "a Mich. $50
/ business of selling lquor); Martin v.
State. 80 Ala. "a lretailing without IL
censel State v. Ms. - L. r. A. N.
| a. 4l2 iretailing); Norman " State,
| 100 Ga. 700, % $. Il. 49, 1898 (tippling
housed Spokane v. Baughman. lO3
Pac IA, 1909 fbarroom).
II is urged by the defendant that the
cases cited by the state. decided In
Jurisdictions under prohibition or local
option statutes, are without weight in
support of its contention that the
transaction charged to the defendant is
n sale.
The text writers and some Judges find
a distinction between statutes regulat-
ing the sale of liquor in license terri
tory and statutes prohibiting the sale
of liquor in prohibition territory. as
affecting what constitutes sale of
liquor by a club. II is difficult for us
To find the distinction TO exist merely
upon the ground that in one iurisdic-
tion the sale of liquor is partially pro-
hibited and in another the sale is to.
tally prohibited.
When a distinction exists between
statutes the distinction usually is one
of terms and intent, and If the terms
and intent of a statute prohibiting
the sale of liquor, excepting i'm a
! designated manner, are as positive as
the terms of another statute prohib-
iting the sale of liquor in any man
ner, a case within the prohibition of
either has a bearing upon case
/ within the prohibition Of the other
OF the same opinion was the court in
Conococheague Club VS.. State. ZIG Md.
81.
We know Of no statute that abso-
lutely prohibits the sale of liquor. All
prohibition statutes, that have come
10 our knowledge. allow the sale of
liquor for some purpse. usually for
medicinal purposes, and sometimes
for sacramento. mechanical and scien-
tific purposes. While Il is commonly
understood that total prohibition pre-
walls by law in Kent and Sussex
counties. such is not the case. LIQUOR
may be lawfully sold I'm those coun-
ties in the manner prescribed by law.
just as II may be lawfully sold in New
Castle county In the manner prescrib-
ed by law. The sale of liquor in New
Castle county is as positively pro-
hibited in all ways excepting those
designated, as the sale of liquor in
, Kent county is prohibited in all ways
excepting those designated, namely
, for medicinal and sacramento pur-
poses. There are exceptions as to
, sales under statutes relating TO each
county and the prohibition of the
I statute relating to New Castle county
, so far as II extends, is as absolute
! and complete as the prohibition in
! the statute that relates TO Kent coun.
4 ~, so far as Il extends. After al
\ is said and done, the right of sale by
\ club. either in license or prohibi
r ton territory, depends upon tn,
o terms and intent of the statutes. anc
= the intent of each statute. in the case,
\ illustrated. Is 10 prohibit the sale o
III