Griffith v. Wells , 3 Denio 226 ( 1846 )

By the Court, Bronson, Ch. J.

Our excise law does not, in ..terms, prpjijb.it the sale of strong or spirituous liquors without a license, nor declare the act illegal; but only inflicts a penalty upon the offender. (2 R. S. 680, § 15, 16.) From this it is argued, that although the seller without a license incurs a penalty, the contract of sale is valid, and may be enforced by action. But it was laid down long ago, that “ where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful; for it cannot be intended that a statute would inflict a penalty for a lawful act.” (Bartlett v. Viner, Skin. 322.) In the report of the same case in Carthew, (p. 252,) Holt, Ch. J. said, “a penalty implies a prohibition, though there are no prohibitory words in the statute.” Although this was but a dictum,, the doctrine has been fully approved. (De Begnis v. Armistead, 10 Bing. 107; Foster v. Taylor, 3 Nev. & Man. 244; 5 B. & Ad. 887, S. C. by the name of Foster; Cope v. Rowlands, 2 M. & W. 149 ; Mitchell v. Smith, 1 Bin. 110; 4 Dall. 269, S. C. ; Leidenbender v. Charles, 4 Serg. & Rawle, 159, per Tilghman, Ch. J.; Springfield Bank v. Merrick, 14 Mass. 322.) When a license to carry on a particular trade is required for the sole purpose of raising revenue, and the statute only inflicts a penalty by way of securing payment of the license money, it may be that a sale without a license would be valid. (Johnson v. Hudson, 11 East, 180; Brown v. Duncan, 10 Barn. & Cress. 93 ; Chitty on Cont. 419, 697, ed. of 1842.) But if the statute looks beyond the question of revenue, and has in view the protection of the public health or morals, or the prevention of frauds by the seller, then, though there be nothing but a penalty, a contract which infringes the statute cannot be supported. (Law v. Hodgson, 2 Camp. 147; Brown v. Duncan, 10 B. & C. 93; Foster v. Taylor, 3 Nev. & Man. 244 ; 5 B. & Ad. 887, S. C. ; Little v. Poole, 9 B. & C. 192; Tyson v. Thomas, McClel. & Younge, 119; Wheeler v. Russell, 17 Mass. 258; Bensley v. Bignold, 5 B. & Ald. 335 ; Drury v. Defontaine, 1 Taunt. 136, per Mansfield, Ch. J.; Cope v. Rowlands, 2 M. & W. 149; Houston v. Mills, 1 Moody & Rob. 325 ) Now I think it quite clear, that in the enactment of our excise law the legislature looked beyond the mere question of revenue, and intended to prevent some of the evils which are so likely to flow from the traffic in spirituous liquors. If revenue alone had been the object, licenses would have been allowed indiscriminately to all. But the statute forbids a license to any one, whether tavern-keeper or grocer, who is not of good moral character; and he must moreover give bond, with sureties, that his house or grocery shall not become disorderly. (§§ 6, 7, 13.) These regulations were evidently intended to protect the public, in some degree, against the consequences which might be expected to follow from allowing all persons, at their pleasure, to deal in strong liquors. And although the statute only inflicts a penalty for selling without a license, the contract is illegal, and no action will lie to enforce it. The justice was wrong; and his judgment has been properly reversed by the common pleas.

Judgment affirmed.