The defendant insists that a negation of “ authority to sell intoxicating liquors ” extends no further than to cases of persons not having an appointment to sell as agents of the town, or in some form authorized by the acts of an appointing power, or some direct authority conferred on them personally. Bui, in the opinion of the court, this is too narrow a construction of the allegation. Authority to sell such liquors may as well be derived directly from the general law, operating upon all citizens under the same circumstances, as from an appointment or license, by an authorized tribunal, to the individual. Authority to do a thing is having the legal power or right so to act. The first section of the statute upon which this complaint is founded, is certainly in accordance with the construction that “authority” to sell embraces all the various forms under which a legal right to sell may exist. It declares it to be unlawful and criminal for any person to sell any intoxicating liquor, “ unless he is duly authorized so to do, as is hereinafter provided.” The term “ duly authorized,” as here used, clearly embraces all the various cases of legal sales under the provisions of the act, under whatever form they may be authorized—whether by appointment as town agents; or under the provisions authorizing the manufacture and sale of intoxicating liquors under the approval of the county commissioners, upon a special application to them for that purpose ; or lawful sales made without any special authority or appointment therefor, by importers of liquors of foreign production, or by druggists to other druggists, apothecaries and physicians, for medicinal purposes. Exceptions overruled *
Commonwealth vs. Louis Lafontaine.
A complaint on St. 1855, c. 215, which charges the defendant with selling intoxicating liquors, “ without having any legal appointment or authority therefor,” sufficiently negatives the defendant’s right to sell in any mode permitted or not prohibited by thf statute.
A complaint, made before a justice of the peace, on the 23d of June 1855, alleged that the defendant, at Washington in this county, on the 16th of said June, “ not being duly appointed by the said town of Washington as agent of said town to sell therein intoxicating liquors, and not having any legal appoint*480tnent or authority to sell intoxicating liquors in said town, did then and there sell to one Nelson Rivault a quantity of intoxicating liquors, to wit, one pint of brandy—said liquor not being eider for other purposes than that of a beverage, nor the fruit of the vine for the commemoration of the Lord’s Supper—against the peace of the Commonwealth, and the form of the statute in such cases made and provided.”
At the trial in the court of common pleas, before Bishop, J., the defendant moved to quash the complaint, “ because it sets forth no offence ; it does not allege that the sale was in violation of the provisions of the act of 1855. The complaint does not allege that the sale was not one of those permitted by the act. It does not allege that the liquor sold was not liquor the right to sell which is given by some law of this commonwealth.” But this motion was overruled. After verdict of guilty, the defendant moved in arrest of judgment, for the reasons set forth in the motion to quash; but this motion also was overruled. The defendant alleged exceptions.
J. E. Field, for the defendant.
This complaint only negatives the defendant’s “legal appointment or authority to sell intoxicating liquors.” The words “ appointment or authority,” used together, have the same meaning as in St. 1852, c. 322, §§ 12, 14, and refer only to appointments as town ágents, or licenses from county commissioners. But a new provision was inserted in St. 1855, c. 215, § 2, not contained in St. 1852, namely, that the act should not be construed to forbid sales by importers, in the original packages, &c., nor by druggists, for medicinal purposes only. Such sales are not under any “ legal appointment or authority ” conferred upon the seller, but are simply declared not to be unlawful. This complaint is therefore defective, because it does not negative all the circumstances of exemption and modification contained in the statute. Commonwealth v. Hart, Suffolk, March 1853.
J H. Clifford, (Attorney General,) for the Commonwealth,
relied on Commonwealth v. Hart, above cited; Commonwealth v. Wilson, Middlesex, 1853; Commonwealth v. Murphy, 2 Gray, 510 ; Commonwealth v. Baker, 10 Cush. 405.
Case Details
3 Gray 479
69 Mass. 479
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