State v. Boston Club

The opinion of the court was delivered by Breaux, J. The State prosecutes this rule against the clubs above named for the payment of license taxes for conducting the business of retail liquor dealers and keeping billiard and pool tables and a restaurant. By agreement the two cases were consolidated. The defendants, incorporated institutions under the laws of the State, pleaded a general denial; also a special denial that they, during any of the years named in plaintiff’s rule, pursued any trade, profession, business or calling, and in a special plea in their answer they — 588 — alleged that Art. 206 of the Constitution limits the power of the General Assembly, and that any legislation levying such a license tax upon others than those pursuing trades, professions, business and calling is unconstitutional. It is proven that the Pickwick Club is a social club and composed of members who have no proprietary interest in the assets of the club. That it provides a reading room, restaurant, bar room, billiard and sitting rooms for its members. That the expenses of the club are defrayed by annual dues of $100 for each member, and by payment made by the members for food and drinks. That the guests pay for drinks, or the introducer pays. That the prices are about the same as those in the bar rooms of the city. That small sums were expended to make additions to the library, and about $400 per annum are spent in papers and magazines. It is also proven that the club is open to members, their families and guests; the guests are limited to three at a time for each member. The agreed statement of facts shows that no profits have been realized; that the operations of the club have resulted in a loss over and above its income from all sources; except that for the year ending April 1, 1892, the loss was about $7000 less than the total income, including members’ dues, and that the sums received were expended in increasing the convenience afforded to members. The object of the other defendant, the Boston Club, to all intents and purposes, is the same. There is but little difference between the charters of these clubs. The proof establishes that profit is not contemplated by the sales of liquors and other refreshments, and that the defendant institutions are of a high social standing. Plaintiff claims licenses from the defendants for the years 1888, 1889, 1890 and 1891, with interest and attorney’s fee, under the statutes which provides that for every business or places where liquors and other refreshments are sold, directly or indirectly, an annual license graduated on gross receipts from sales shall be paid, and that no establishment selling or giving away, or otherwise disposing of, any spirits shall pay less than the minimum amounts fixed in the statutes. — 589 — An examination of the different acts discloses that in 1871 the Legislature classed clubs in which spirituous liquors were sold, used or supplied to members or visitors under the head of “ persons, trades, professions and occupations subject to taxation,” and imposed upon them a license tax of $250 per annum. The word “ club ” is not in the revenue act of 1880. A license was imposed, in that act, on “all places” and “establishments ” where liquor is sold or given away. The act of 1886 upon the subject is the same, except that restaurants are not named. The Legislature retained the license on clubs distributing liquors and on the business of “ restaurants.” This act and those subsequent contain an exemption not in prior acts. “No license shall be charged for selling refreshments for charitable or religious purposes.” Oorporations are distinct from all persons who compose them. The General Assembly has by separate enactment authorized the incorporation of societies for literary and other similar purposes, and in some respects the law maintains a difference between them and corporations for the profit of its members: in other words, business corporations, but there is no difference between them as to collective entity. The rights of each are independent from the individual shareholders. The defendants, to the extent that they have for purpose to provide for the social and intellectual entertainment of their members, are exempt. In order to support their contention that they are not indebted at all for a license, they allege that they are not engaged in trade, and do not follow a business. The definition of business by the lexicographers is sufficiently broad and comprehensive to embrace every employment or occupation, and all matters that engage a person’s attention, or require his care without the least regard to trade or business. The meaning of the legislators as expressed in the statutes is not as extensive. Business, in a legislative siynse,' is that which occupies the time, attention and labor of men for purposes of livelihood, or for profit. A calling for the purpose of a livelihood, We will follow the latter meaning in interpreting the statutes relating to license tax. — 590 — The defendants are not money corporations in a business sense, nor are. they business corporations. All subjects of license designated in the license acts have reference to business, except liquors. There is a license required for the business of a hotel, of a theatre, of billiard tables and other occupations. The defendants may think it sufficient to answer that the same is true for every business of bar room, cabaret and coffee house. A position which would be correct, if legislation with reference to alcoholic drinks were not exceptional. The section 11 must be taken as a whole. It includes all places and establishments in which liquor is distributed. The limitation of the Constitution pleaded and argued does not restrict the General Assembly so as to prevent the collection of a liquor license as required by the statute. The Legislature has the power to prohibit as well as the power to license the sale of liquors. It has complete control of the subject. The affirmative prescription of the Constitution authorizing legislation with reference to a license tax, it has been decided, is not a limitation or restriction on the law-making power. The judiciary can arrest the execution of a statute when it con - ' flicts with the Constitution. It is for those who question the validity of a law to show that it is forbidden. It was stated in argument by defendants’ counsel that these social clubs are more private than the average dwelling. That fact does not relieve them from the payment of a license. In reference to privacy they will be, under the law, as secure from intrusion as they were prior to the payment of a license. The payment of a license does not have the effect of making them public. Nor is the co-operation feature urged (if there be co-operation in carrying on the affairs of a club), a good ground of defence sustainable against the plain provision of the law. The corporation furnishes its members with things they enjoy in common, such as commodious reading rooms, books, newspapers, at an assessed value per annum. The drinks can not be enjoyed in common with all the members of the club. — 591 — Bach member pays for that which he receives. Even if it be not a sale it is included within the terms of the statute, and can not escape the application resulting when any spirits, wines, alcohol or malt liquors are “ given away or otherwise disposed of.” The question whether or not clubs furnishing refreshments to their members, for a consideration are engaged in selling and in business that requires a license, is one of first impression in this State. It has led to many and conflicting decisions in other States. Cases arose when the club was an association not incorporated, and the courts decided that there was no sale. The case of Groff vs. Evans, Q. B. Div. 375, upon the subject, is referred to as leading. The manager of the Grosvenor Club, an association organized in good faith, was prosecuted for selling liquor without a license, under the English licensing act prohibiting the retail of any intoxicating liquor without a license. He interposed the defence that he transferred to the members, as they required, for a money consideration. That each member being a part owner, he (the member) could not be the seller and buyer of his own property. The funds of the club received from the members for liquor were used in buying other liquors and other refreshments which were distributed to other members at fixed prices. The court maintained the defence and decided that the members were co-owners, and that the transfer of the property was not a sale within the meaning of the section. The reasoning which led to the conclusion has been criticised, and has not met with general approval. The infinitesimal interest of the member of a large unincorporated association in the drink he orders does not make him a “ tenant in common” with his co-members; and the delivery fora consideration not a sale. This decision has, nevertheless, been followed in several jurisdictions, namely: in the cases of Commonwealth vs. Pomphret, 137 Massachusetts, p. 567; Commonwealth vs. Smith, 102 Massachusetts, p. 147; Seim vs. State, 5 Md. 566. “The club is not required to pay a license;” it was not a sale. Piedmont Club vs. Commonwealth, 12 South-Eastern Reporter, 963; State ex rel. Columbia Club vs. Mr. Master Mayor, 14 South-Eastern Reporter. — 592 — The better opinion seems to be that, whether incorporated or not, in both cases, the property passes to the individual member, and the money paid becomes the property of the club. This was the conclusion reached in a number of cases. In State vs. Neis, 108 North Carolina, 787, the court held that the member of the association did not receive the identical liquor which belonged to himself; that it belonged mostly to others, in which he had a minute individual interest; that for his money he received in exchange liquor of others as well as of himself, and converted it to his sole and separate use; that it was a sale. The court affirmed the prior decision of State vs. Lockyear, 95 North Carolina. In Martin vs. State, 59 Ala., the club was incorporated; it purchased liquors and sold to its members. The money received was deposited in the common fund and was spent to replenish the stock of liquors for the use of the club. The court held that the furnishing of drinks to members for a consideration is a sale. A similar conclusion prevailed, as to sales, in the well considered case of People vs. Soule, 74 Mich. 255. The following decisions are to the same effect: State vs. Easton Club, 78 Md. 102; Chesapeake Club vs. Maryland, 68 Maryland, 446; New York vs. Andrew, 427; United States vs. Wittig & Lowell, 466. The weight of authorities impels the assent to the proposition that they are sales. Conceding them to be sales, considering the statute as a whole, we conclude that it is not the intention to require a license of social clubs as being in business or trade. An indispensable criterion of business is that profit is intended. The Supreme Court of Tennessee, of Virginia, of Montana and of South Carolina have decided that the operations of clubs in supplying their members with food and liquor do not constitute a business within the meaning of the statutes of their respective States. But intoxicating liquors are specially designated, singled out, excepted. They are subjected to the license tax without reference to any business in which the party may or may not be engaged. The history of legislation upon the subject, in this State, preclude the possibility of concluding that it was not the intention to tax — 593 — them in inserting a paragraph as broad and comprehensive in Section 11 of the license law. It is not limited to a license for the business of bar room, etc., but extends to all “ places ” and “ establishments,” selling or “ giving away or otherwise disposing.” This reaches the transfer of liquors, whether by “ sale,” “ gift or other disposition.” Under the settled jurisprudence of this court in cases appealing to its equity powers, penalties in matters of licenses are allowed from judicial demand. State of Louisiana and City of New Orleans vs. New England Mutual Insurance Co., 43 An. 733. It is therefore ordered, adjudged and decreed that the judgment appealed from, in favor of the Pickwick Olub, be reversed, avoided and annulled. And it is now ordered, adjudged and decreed that plaintiff have judgment against the Pickwick Olub for the amount of the licenses of 1888, 1889, 1890 and 1891, to-wit: Sixteen hundred dollars and 10 per cent, attorney’s fee on the amount of $800 and 5 per cent, attorney’s fee on the remaining $800. It is ordered, adjudged and decreed that the judgment appealed from, in favor of the Boston Olub, be reversed, avoided and annulled. And it is now ordered, adjudged and decreed that plaintiff have judgment against the Boston Olub for the amount of the licenses of 1888, 1889, 1890 and 1891, to-wit: Nine hundred dollars and 10 per cent, attorney’s fee on $500 and 5 per cent, attorneys’ fee on $400. And that said amounts be secured as prayed for. The defendants to pay the costs of both court's. Judge Fenner recuses himself, being an officer of the defendant corporation.