Crosby v. Snow , 16 Me. 121 ( 1839 )

The opinion of the Court was at a subsequent term delivered, as drawn up by

Weston C. J.

The case finds, that Snow and Burr, for whose delinquency this action is prosecuted, were duly licensed as common victuallers. It has been decided, that a common victualler has a right to sell spirituous liquors in small quantities, for the use of such as call for them, in their house, cellar or place of business, to a limited extent, but not to drunkenness or excess. State v. Burr, 1 Fairf. 438.

It is admitted, that Snow and Burr sold strong liquors, and permitted them to be drunk in their place of business. As no excess is found or stated, this must be understood to be to a limited extent. And this is so far from being a violation of the law, that it was done in the exercise of legal rights, which had been settled and recognized. It is true, the board of Aldermen had been pleased to prescribe, that this privilege should no longer be enjoyed, and when they granted the license, by which the defendants claim to be protected, they required that the bonds now in suit should be given, to secure the inhibition.

However laudable may have been the motives, by which the board were actuated, we cannot but regard it as an attempt to change the law, which transcended their authority. Whatever rules and regulations of the board granting the license, in reference to the business, provided for in the statute form of the bond, it may have been competent for them to establish, we are satisfied, that power is not given to them to take away the immunities, the license legally confers. It cannot be consistent with the policy of the law, to enforce contracts, the object of which is, to deprive a class of citizens of privileges, which the law has conferred upon them, when licensed in pursuance of its requirements. Still less can this be permitted under color of official authority.

Nonsuit confirmed.