Van Zant v. People

The plaintiff in error, was indicted in the Rock-land sessions,- for keeping a disorderly house, and also for selling on Sunday, while a licensed inn keeper, strong and spirituous liquors to persons other than travelers or lodgers. To the count of the indictment charging the keeping of a disorderly house, he pleaded not guilty. To the other counts he demurred. The Court of Sessions held the counts, to which the demurrer was interposed, sufficient, and ordered judgment against the defendant, who brought a writ of error to this court. The first count demurred to is, that the said Erastus Vanzant being the keeper of an inn or tavern in said town of Ramapo, in the county of Rockland afqresaid, heretofore to wit: on Sunday the first day of May, in the year of our Lord 1853, and on divers Sundays between that day and the finding of this inquisition, and while the said Erastus Vanzant, was the keeper of such inn or tavern at Ramapo, willfully and unlawfully, and contrary to the provisions of the statute in such cases made and provided, did sell and dispose of strong and spirituous liquors to one Archibald Cooper, to be drank in-the inn or tavern of the said Erastus Vanzant, the said Archibald *171Cooper then and there not being a lodger in such inn or tavern, and the said Archibald Cooper then and there not being a person actually traveling on said first day of May, and on the said divers other Sundays above mentioned, in the cases allowed by law; and other wrongs and misdemeanors then and there did, to the evil example of all others, in like cases offending against the form of the statute, in such case made and provided, and against the peace of the people of the state of New York, and their dignity.” s

The charge expressed in other language is that Vanzant being an innkeeper, sold on Sunday strong and spirituous liquors to Archibald Cooper, the said Cooper not being a traveler or lodger.

The second count is, “ that the said Erastus Vanzant, being the keeper of an inn or tavern in the town of Ramapo aforesaid, heretofore to wit: on Sunday the first day of May, in the year of our Lord 1853, and on divers other Sundays between that day and the finding of this inquisition, and while the said Erastus Vanzant was the keeper of such inn or tavern at the said town of Ramapo, willfully and unlawfully, and contrary to the provisions of the statute, in such case made and provided, did sell and dispose of strong and spirituous liquors to divers persons, to the jurors unknown, to be drank in the inn or tavern of the said Erastus Vanzant, the said divers persons, to said jurors so unknown, then and there not being lodgers in such inn or tavern, and not being persons actually traveling on the said first day of May last aforesaid, and on the said divers other Sundays last aforesaid, in the cases allowed by law; and other wrongs and misdemeanors then and there did, to the evil example of all others, in like cases offending against the form of the statute, in such case made and provided, and against the peace of the people of the state of New York, and their dignity.”

The charge here is that Vanzant, on different Sundays, sold strong and spirituous liquors to divers persons, other than lodgers and travelers.

*172Both counts contain the allegation that Yanzant was an innkeeper, also that he did these acts, contrary to the provisions of the statute, that the liquors sold were to be drank in the tavern of Yanzant, and that the persons to whom they were sold were not lodgers or travelers. This raises the question whether for an innkeeper to .sell liquors to.be. drank on the, premises on Sunday, to persons, other than those excepted in the statute, is a misdemeanor.

Title IX, part 1, chap, xx, of the R. S. entitled “ of excise and. the regulation of taverns and groceries,” provides that “ all offences against the provisions of this title, shall be deemed misdemeanors, punishable, by fine and imprisonment.” But in no part of this title is there any prohibition against selling on Sunday; on. the contrary, the license by the words, of the statute allows the innkeeper “ to, sell strong and spirituous liquors and wines, to be drank in his house,” and contains no language, excepting Sunday from the general operation of the license: by this, title therefore, it is not a misdemeanor to sell on Sunday.

Article eighth, of title VIII, part 1,' chap, xx, of the R. S„ entitled “ Of the better observance of Sunday,” provides that “ no keeper of an inn or tavern, or of any alehouse, or porterhouse, or grocery, nor. any other person authorized to retail strong or spirituous liquors, shall, o.n Sunday, sell or dispose of any ale, porter, strong or spirituous liquors, excepting to lodgers in such inns or taverns, or to persons actually traveling on that day in the cases allowed by law. Every person offending against this provision, apd being thereof duly convicted, shall forfeit the sum of two dollars and fifty cents.” There is no part of the statute which makes a violation of this section a. misdemeanor. T-hg general provision in reference to violations of statutes is, “ where the performance of any act is prohibited . by any statute, and no penalty for the violation of such statute is imposed, either in the same section containing such prohibition or in any other section or statute, the doing such act shall be deemed a misdemeanor.” The converse of this is equally true, that where there is a penalty provided for the violation of *173a statute, and neither that or any other statute declares it a misdemeanor, the party committing the violation is liable for the penalty only. A distinct penalty is provided for this offence; the mayor, recorder, or any alderman of a city, or a justice of the peace, may punish for all these violations, but no where by statute is the person offending against the provisions for the observance of Sunday declared guilty of a misdemeanor. As both these counts are clearly drawn for violations of the statute, I might leave this case here, but I have examined to ascertain whether at common law an innkeeper is indictable for selling liquor on Sunday, and am satisfied that the mere act of selling on Sunday, is no more an indictable offence than making a contract or selling a horse. But a person may do either, that is, he may dispose of horses or sell liquor,' in such a manner as to be guilty of a misdemeanor at common law.

The Sabbath is a recognized institution. Whatever openly violates its sanctity and interferes with its proper and orderly observance, is indictable. A case is reported where a butcher was indicted for commonly keeping open shop and exposing meat to sale on Sunday. If an innkeeper chooses so far to disregard the proprieties of the day, as commonly to keep his house open, and publicly sell spirituous liquors to persons other than travelers and lodgers, so" that inhabitants of the neighborhood are by that me.ans induced to frequent his house and habitually congregate there to drink on Sunday, he is indictable and deserves a punishment quite as severe as one who sells without a license. But as the two counts of the indictment under consideration are both drawn under the statute, and are without the necessary averments to make an offence at common law, the plaintiff in error is entitled to judgment.

The second and third counts of the indictment, to which a demurrer was interposed, and upon which'the judgment of the court below against the defendant was rendered, were against a regularly licensed tavern keeper, for selling spirituous liquors on the sabbath, to persons other than actual travelers or lodgers. No statute declares this to be a *174misdemeanor. The statute prohibiting it imposes a penalty of two dollars and fifty cents, and the statute declaring that the violations of statutory prohibitions shall be deemed misdemeanors, limits its application to cases where no penalty is imposed either in the same section containing the prohibition, or in any other section or statute. The maxim inclusio unius est exclusio alterius is peculiarly applicable to criminal cases. The judgment of the court below should be reversed.

Judgment reversed and judginent. for plaintiff in error on demurrer.