State v. . Steele

Avery, J. after stating the facts: It was formerly held by the Courts of England that where an inn-keeper allured travelers to his tavern by holding himself out to the public as ready to entertain them, and then refused to receive them into his house when he had room to accommodate them, and after they had tendered the money to pay their bills, he was liable to indictment. But this doctrine (says Bishop, Vol. I, § 532, Cr. Law) has little practical effect at this time, being rather a relic of the past than a living thing of the present. Rex v. Lewellyn, 12 Mod. Rep., 445. In a dictum in State v. Mathews, 2 Dev. & Bat., 424, this old principle was stated with some qualification, viz., “that all and every one of the citizens have a right to demand entertainment of a public inn-keeper, if they behave themselves and are willing and able to pay for their fare; and as all have a right to go there and be entertained, they are not to be annoyed there by disorder, and if the inn-keeper permits it he is subject to be indicted for a nuisance.” Rommel v. Schonbacker, 127 Penn. St. Rep., 579. The duty and legal obligation resting upon the landlord is to admit only such guests as demand accommodation, and he has the right to refuse to allow even travelers who are manifestly so filthy, drunken or profane as to prove disagreeable to others who are inmates, and thereby to injure the reputation of his house, to enter his inn for food or shelter, though they may be abundantly able to pay his charges. 2 Wharton Cr. Law, § 1587; Recks v. Rymer, 13 Cox Cr. Law, 378. The right to demand admission to the hotel is confined to persons who sustain the relation of guests, and does not extend to every individual who invades the premises, not in response to the invitation given by the *777 keeper to the public, but in order to gratify his curiosity by seeing, or his cupidity by trading with, patrons who are under the protection of the proprietor. Wharton C. L., § 625. The landlord is not only under no obligation to admit, but he has the power to prohibit the entrance óf any person or class of persons into his house for the purpose of plying his guests with solicitations for patronage in their business, and especially is this true when the very nature of the business is such that human experience would lead us to expect the competing drummers', in the heat of excitement, not only to trouble the guests by earnest and continued approaches, but by their noise, or even strife. The guest has a positive right to demand of the host such protection as will exempt him from annoyance by persons who intrude upon him, without invitation and without welcome, and subject him to torture by a display of their wares or books, or a recommendation of their nostrums or business. That learned and accomplished jurist, Chief Justice Shaw, delivering the opinion in Commonwealth v Power, 7 Metc., 600, said : “An owner of a. steamboat or railroad, in this respect, is in a condition somewhat similar to that of an inn-keeper, whose premises are open to all guests; yet, he is not only empowered, but he is bound so to regulate his house as well with regard to the peace and comfort of his guests who there seek repose as to the peace and quiet of the vicinity, and to repress and prohibit all disorderly conduct therein; and, of course, he has a right and is bound to exclude from his premises all disorderly persons and all persons not conforming to regulations necessary and proper to secure such quiet and good order.” This principle was stated as an established one, and used by the Court as an argument to sustain, by analogy, its ruling, announced in a subsequent portion of the opinion, that a railroad company had a right, by its regulations, to exclude from its depot and cars, at any station, persons who visited them for the purpose of soliciting passengers to stop at particular hotels; and one of the reasons *778 given for holding the regulation reasonable was, that where the agents urged the claims of their respective hotels “with earnestness and. importunity, it was an annoyance to passengers.” The doctrine is there laid down, too, that persons other than passengers prima facie have the right to enter the depot of a railroad company'as others besides guests may go into hotels without making themselves trespassers, because, in both instances, there is an implied license given to the public.to enter; but such licenses, in their nature, are revocable, except in the one case as to passengers, and in the other as to guests, who have the right to enter the train, ticket-office or hotel, as the case may be, if they are sober, orderly and able to pay for transportation or fare. The Court went further in that case and held that in enforcing the reasonable regulation against drummers for hotels at the depot, the servants of the railway company were not guilty of an assault for expelling by force, not excessive, a person who had repeatedly violated the regulation by going upon the platform and soliciting for a hotel, though, on the particular occasion when he was ejected from it, he had a ticket and intended to take the train destined for another town, but failed to disclose to such servants the fact that he entered for “another purpose, when it was in his power to do so.” Were we to follow the analogy to which the principle laid down in that case would lead, an inn-keeper could not only make and enforce a regulation forbidding persons to come on his premises for the purpose of soliciting his guests to patronize the livery-stables that they might represent, but he might, in enforcing the rule against one, who had previously violated it after notice that he should not do so, put such person off his premises, without excessive force, though, at the particular time the person had entered with the bona fide intent to become a guest at the hotel, but failed to announce his purpose, or, under the same principle, he might expel by force one who *779 becomes a guest and takes advantage of his situation to subject other inmates of the house to the annoyance of drumming for such establishments. The same distinction is drawn between guests and others who enter a hotel intent on business or pleasure by the Courts of Pennsylvania. In Com. v. Mitchell, 1 Phil. (Pa.). 63, and Com. v. Mitchell, 2 Pars.’ (Pa.) Sel. Cases, 431, it was held that an inn-keeper is bound to receive and furnish food and lodging for all who enter his hotel as guests and tender him a reasonable price for such áccommodations; but “if an individual (other than a guest) enters-a public inn, and his presence is disagreeable, to the proprietor and his guests, he has a right to request the person to depart, and, in case of refusal, to lay his hands gently upon him and lead him out, and if resistance is made, to employ sufficient force to put him out, without incurring liability to indictment for assault and battery.” Justice Story, in Jencks v. Coleman, 2 Sumner’s Rep., 224, discussed the doctrine to which we have referred, that the right even of one who pays for his passage on a steamboat or railway, is subject not only to the limitation that he shall be sober, and shall not be guilty of such nuisance, or make such disturbance as shall annoy other passengers, or whose characters are doubtful, dissolute, suspicious or unequivocally bad, but to the further restriction that he may be refused admittance or expelled, after he enters the boat or car, if it appear that his object is to inteffere with the interests or patronage of the proprietors, or company, so as to make the business less lucrative to them.” In the case last cited, the proprietors of the boat “Franklin ” had entered into a contract to run a line of stages between .Boston and Providence in connection with the boat, which was running from New York to Providence The plaintiff Jencks had been in the habit of coming on board the boat at Newport to solicit passengers for an opposition line of *780 stages between Providence and Boston, thus interfering with the business of the owners of the boat, and the arrangement made by them for their own profit and advantage with a different line from that represented by said plaintiff, just as in the case at bar the proprietors of the hotel had entered into a contract with one Sevier by which they were to receive ten per centum of the amount realized by him for the hire of carriages to the guests of the Battery Park Hotel. Justice Story, too, runs the parallel between the hotel and boat line just as Chief Justice Shaw did between the inn and the railway company, but with the marked difference that the former goes much further in tracing the analogy that makes the public house subject to some of the same liabilities created, and entitled to the full measure of protection afforded by law to companies engaged in transporting passengers. In discussing the principle, he says: “ A case still more strongly in point, and which, in my judgment, completely meets the present, is that of an inn-keeper. Suppose passengers are accustomed to breakfast or dine or sup at his house, and an agent is employed by a rival house, at the distance of a few miles, to decoy the passengers away the moment they arrive at the inn. Is the inn-keeper bound to entertain and lodge such agent, and thereby enable him to accomplish the very objects of his mission to the injury or ruin of his own interests? I think not.” In the case of Barney v. Steamboat Co., 67 N. Y., 302, the Court of Appeals held that a company running a line of steamboats for transporting passengers had a right to establish in connection with their boats an agency for the delivering of baggage at the terminus, and that one who had had the contract to transfer such baggage upon similar terms two years before could be expelled and refused as a passenger, if, after notice, he would not discontinue his efforts to induce passengers to employ him in the same capacity rather than an expressman with whom the company had entered *781 into a later agreement, for their own pecuniary interest, to deliver the baggage of its passengers. All of the authorities that we have cited above are collated and approved in Angelí on Carriers, §§ 530, and 530a and 5306. In the case of Harris v. Stevens, 31 Vermont, 79, it was held that when a railway company erected station-houses, it impliedly opened the doors of them to every person to enter, but that the license was revocable as to all persons except those who had legitimate business there, growing out of the operation of the road and with the officers or employees of the company, and that the corporation had the right to direct all other persons to leave the depot or ticket office, and, on their refusal to depart, to remove them. It was further held in the same case, that it was a reasonable regulation to require every one who expected to take the train and desired to remain in the station-house for that purpose, to purchase a ticket, and that the servants of the company would be justified in expelling, without excessive force, one who did not declare his purpose to buy a ticket, and actually by it within a reasonable time, or one who had bought a ticket even, if he failed to disclose that fact when requested to leave. In the recent case of Old Colony Co v. Tripp, 147 Mass., 35, the Court laid down the rule in reference to the rights of persons at depots, as follows: “Passengers taking and leaving the cars at the station, and persons setting down passengers or delivering merchandise or baggage for transportation from stations, or taking up passengers, or receiving merchandise that had been transported to the station, had a right to the building and grounds superior to the right of the plaintiff (corporation) to exclusive occupancy.” And it is further held to be the correct construction to be placed on a statute passed by the Legislature, giving to all persons “equal terms, facilities and accommodations for the use of its depot and other buildings and grounds,” that it was *782 intended only to govern the relation between the common carrier and its patrons; and hence, that a railroad company, even in the face of such a statute, had a right to contract with an individual to furnish the means to carry incoming passengers, or their baggage and merchandise, from its stations, and might grant to him the exclusive right to solicit the patronage of such passengers. Upon a revieyw of all the authorities accessible to us, and upon the application of well-established principles of law to the admitted facts of this particular case, we are constrained to conclude that there was error in the charge given by the Court to the jury, because— 1. Guests of a hotel, and travelers or other persons entering it with the bona fide intent of becoming guests, cannot be lawfully prevented from going in, or be put out, by force, after entrance, provided they are able to pay the charges and tender the money necessary for that purpose, if requested by the landlord, unless they be persons of bad or suspicious character, or of valgar habits, or so objectionable to the patrons of the house, on account of the race to which they belong, that it would injure the business to admit them to all portions of the house, or unless they attempt to take advantage of the freedom of the hotel to injure the landlord’s chances of profit derived either from his inn or any other business incidental to or connected with its management and constituting a part of the provision for the wants or pleasure of his patrons. Jincks v. Coleman, supra; Com. v. Mitchell, supra; Com. v. Power, supra; Pinkerton v. Woodard, 91 Am. Dec., 660; Barney v. Steamboat Co., supra; 1 Wharton’s Cr. L., § 621; Angell on Carriers, §§ 525, 529 and 531; Britton v. Railroad Co., 88 N. C., 536. 2. When persons, unobjectionable on account of character or race, enter a hotel not as guests, but intent on pleasure or profit, to be derived from intercourse with its inmates, they are there not of right, but under an implied license that the *783 landlord may revoke at any time, because, barring the limitation imposed by holding out inducements to the public to seek accommodation at his inn, the proprietor occupies it as bis dwelling-house, from which he may expel all who have not acquired rights growing out of the relation of guest, and •must drive out all who, by their bad conduct, create a nuisance and prove an annoyance to his patrons. Harris v. Stevens, 31 Vt., 79; 1 Wharton’s Cr. L., § 623. 3. The regulation, if made by an inn-keeper, that the proprietors of livery-stables and their agents, or servants, shall not be allowed to enter his hotel for the purpose of soliciting patronage for their business from his agents, is a reasonable one, and after notice to desist, a person violating it, may be lawfully expelled from his house if excessive force be not used in ejecting him. Com. v. Power, supra; Harris v. Stevens, supra. See also Grizwald v. Webb, recently reported in 41 Alb. Law Jour., 351 (a Rhode Island case); Old Colony Co. v. Tripp, supra. 4. An inn-keeper has, unquestionably, the right to estáb-lish a news-stand or a barber-shop in his hotel, and to exclude persons who come for the purpose of vending newspapers or books, or of soliciting employment as barbers, and, in order to render his business more lucrative, he may establish a laundry or a livery-stable in connection with his hotel, or contract with the proprietor of a livery-stable in the vicinity to secure for the latter, as far as he legitimately can, the patronage of his guests in that line for a per centum of the proceeds or profits derived by such owner of vehicles and horses from dealing with the patrons of the public house. After concluding such contract, the inn-keeper may make, and, after personal notice to violators, enforce a rule excluding from his hotel the agents and representatives of other livery-stables who enter to solicit the patronage of his guests, and where one has persisted in visiting the hotel for that purpose, after notice to desist, the proprietor may use *784 sufficient force to expel him if he refuses to leave when requested, and may eject him, even though, on a particular occasion, he may have entered for a lawful purpose, if he does not disclose his true intent when requested to leave, or whatever may have been his purpose in entering, if he, in fact, has engaged in soliciting the patronage of the guests. Barnes v. Steamboat Co., supra; Jenks v. Coleman, and Harris v. Sneeden, supra; Angell on Corporations. 5. The broad rule laid down by Wharton (1 Cr. L., § 625), is that the proprietor of a public house has a right to request a person who visits it, not as a guest or on business with guests, to depart, and if he refuse, the inn-keeper has a right to lay his hands gently on him and lead him out, and if resistance be made, to employ sufficient force to put him out. For so doing, he can justify his conduct on a prosecution for assault and battery.” It will be observed that the-author adopts, in part, the language already quoted from the Courts of Pennsylvania. 6. If it be conceded that the prosecutor went into the hotel, at the request of a guest, for the purpose of conferring-with the latter on business, still, in any view of the case, if, after entering, he engaged in “drumming” for his employer when he had been previously notified to desist, in obedience to a regulation of the house, the defendant had a right to expel him, if he did not use more force than was necessary; and if the prosecutor, having entered to see a guest, did not then solicit business from the patron of the hotel, but had done so previously, the defendant, seeing him there, had a right to use sufficient force to eject him, unless he explained when requested to leave what his real intent was. Harris v. Stevens, and Com. v. Power, supra. The guest, by sending for a hackman, could not delegate to him the right to do an act for which even the guest himself might lawfully be put out of the hotel. *785 7. If we go further and admit, for the sake of argument, that the principle declared in Markham v. Brown, 8 N. H., 209, and relied on to sustain the view of the Court below, is not inconsistent with the law on the same subject, as we find it laid down by Wharton and other recognized authorities, still our case will be found to fall under the exception to the general rule stated in express terms in that case. The Court said: “ Where one comes to injure the inn-keeper’s house, or if his business operates directly as an injury, that may alter the case, but that has not been alleged here. Perhaps there may be eases in which he may have a right to exclude all but travelers and those who have been sent for by them. It is not necessary to settle that at this time.” There was no evidence in Markham v. Brown that the proprietor of the hotel had any contract with another stage line, or would suffer pecuniary loss or injury if the agent who was expelled were successful in his solicitations, and it seems that Angell and others, who cite as authority that case, as well as Jenks v. Coleman and Barney v. Steamboat Co., reconcile them by drawing the distinction that in the latter cases, and in the hypothetical case of an inn-keeper, put by Justice Story, the person whose expulsion was justified was doing an injury to the proprietor who had him removed, by diminishing his profits derived legitimately from a business used as an adjunct to that of common carrier or inn-keeper. In using the language quoted above, Justice Parker seems to have had in his mind, without referring to it, the opinion of Justice Story delivered in the Circuit Court but two years before. 8. The defendant, as manager of the hotel, could make a valid contract for a valuable consideration with Sevier to give him the exclusive privilege of remaining in the house and solicting patronage from the guests in any business that grew out of providing for the comfort or pleasure of the *786 patrons of the house. The proprietors of the public house might legitimately share in the profits of any such incidental business, as furnishing carriages, buggies or horses to the patrons, and for that purpose had as full right to close their house against one who attempted to injure the business in which they had such interest, as the owner of a private house would have had, and this view of the case is consistent with the doctrine enunciated in Markham v. Brown. There was no evidence tending to show that Chambers had actual permission from the proprietors to approach the inmates of the hotel on the subject of patronizing him, nor that they had actual knowledge of the fact that he had continued his solicitations after receiving a similar notice to that sent to the prosecutor. The fact that he was overlooked or passively allowed to remain in the hotel (it maybe under the impression on the part of the defendant that he had desisted from his objectionable practices) cannot, in any view of the law, work a forfeiture of the right to enforce a reasonable regulation made to protect their legitimate business from injury. If, therefore, a permit on the part of the defendant to Chambers to “ drum” gratuitously in the house, would at once have opened his doors to all of the competitors of the latter (a proposition that we are not prepared to admit), the defendant did not, so far as the testimony discloses the facts, speak to him on the subject, and the sohnduess of the doctrine that, without interfering with- the legal rights of the guests, the proprietor of a-hotel is prohibited by the organic law from granting such exclusive privileges to any individual as to the use or occupancy of his premises, as any other owner of land may extend, is not drawn in question. We, therefore, sustain the second and third assignments of error. His Honor erred for the reasons given in instructing the jury that the guilt of the defendant depended upon the question whether he permitted Chambers or Sevier to solicit custom in the hous§. He had a lawful right to dis *787 criminate for a consideration in favor of Sevier, while it does not appear from the evidence that he granted any exclusive privileges to Chambers. We hold that the regulation was such a one as an innkeeper had the power to make, and must not be understood as approving the idea that the sanction of the municipal authorities could impart validity to it, if it were not reasonable in itself, and within the powers which the law gives to proprietors of public houses in order that they may guard their own rights and protect their patrons from annoyance. For the reasons given, the defendant is entitled to a new trial. Error.