Question reserved by the Superior Court in and for New Castle county, to be heard before all the Judges.
The case came before the Superior Court on a certiorari to the mayor of the city of Wilmington.
John Hall, the defendant, was charged before the mayor with "having done and performed worldly employment and business on the 24th day of March, 1844, the same being the Lord's day, commonly called Sunday, to wit: at the city of Wilmington aforesaid, by selling and delivering to Jacob Rice, a resident of the city of Wilmington aforesaid, a small glass of brandy; the same selling and delivering of said brandy not being a work of necessity or charity, contrary to the form of the act of the general assembly of the State of Delaware in such case made and provided."
The defendant pleaded that at the time of the supposed offence he was and is an innholder in said city of Wilmington, duly licensed by the governor, and as such duly qualified in all respects according to law, and that on the said 24th of March, 1844, he did at the request of the said Jacob Rice, sell to him one small glass of brandy as a beverage and for his refreshment, he the said Jacob Rice being a resident of said city, which is the same matter mentioned and contained in the foregoing charge and complaint, and no other, and which the said John Hall saith is not contrary to the act of the general assembly of this State as alleged in said charge. "Whereupon this 10th day of April, 1844, the said plea and the matters therein stated and confessed being considered, I am of the opinion that the said act is a worldly employment and business, the same *Page 133 not being a work of necessity or charity, contrary to the form of the act of the general assembly in such case made and provided. It is therefore, considered by me the said mayor, that the said John Hall forfeit the sum of four dollars, to be applied to the use of the poor of New Castle county, according to the form of the said act of the general assembly in such case made and provided.
D. C. WILSON, Mayor."
The exception was that the charge on which the judgment of the mayor was rendered is not within the terms, true intent or meaning of the act of assembly.
The case was argued below by Rogers and Wales for plaintiff and Gray for the State; and was now reargued before all the judges, by Rogers, jr. and Wales for the plaintiff in the certiorari, and by Bates, jr. and Gilpin, attorney general for the State.
Wm. H. Rogers, for plaintiff. — This being a penal statute, must be construed strictly and not made to apply to cases out of its plain intendment. The object of the act was to enforce a public observance of the Sabbath by prohibiting what would offend the public sense of propriety. The selling of a glass of liquor by an innkeeper is not within the act. His employment is to keep a tavern, for which he is licensed. The license authorizes the keeping tavern on all days, without any other restriction than the act itself imposes. Any restriction contained in any other statute cannot apply to him unless by clear and manifest reference. His business requires the furnishing to all persons, at all times, such necessaries as they may reasonably require. Liquors are included among necessaries. (1 vol. 192-5) He is bound to keep his house open on Sunday as well as any other day; to receive all guests, under penalties civil and penal. A guest is such whether an inhabitant of the town or not. (1 Cov. HughesDig. 808; 1 Hawk. P. C. 452; 1 Salk. Rep. 388; 1Saund. R. 302; 1 Smith's Lead. Cases, 47, 62; 3 Barn. Ald. 287.) The call of Rice for the liquor was a lawful demand which the innkeeper was bound to obey. The original act concerning the Sabbath, (1 Col. Laws 184, an. 1740,) provides that no person shall do any servile work, labour, or business on the Lord's day. Sec. 5, prohibits innkeepers from permitting any one to sit drinking and tippling during the hours of divine service on the Sabbath; which indirectly recognizes the right to sell liquor on the Sabbath day, if it do not interfere with public worship.
Bates, jr., for the State. — The offence charged is the selling liquor *Page 134 to a resident of the town who was not a boarder, nor a traveller; and, I shall contend, was not a guest. The conviction regards this as a violation of the act to prevent profanation of the Sabbath.
1. Is an innkeeper prohibited by the law from selling liquor to such a person? The act prohibits any one to do or perform any worldly employment, labour, or business whatsoever upon the Lord's day, (work of necessity and charity only excepted.) Is the selling a glass of liquor under said circumstances the performing worldly employment? The prohibitions of our act are broader than those of the English statute of 29 Car. 2., or the statutes of any State except Connecticut. "Worldly employment in the usual way of his business" is the restriction of the English statute, and the case cited on the other side was decided on that restriction. If the sale of liquor on the Sabbath at the usual place of business, and in the usual course of business, be not the performing worldly employment, it would be difficult to say what would be. What is the difference between such an act and the selling goods, c? 2. Being within the act it is for the defendant to get out of it. He must show himself excused by one of the exceptions, that it is a work of necessity or charity. It will not be contended that it is a work of charity. Is it necessary in itself, or is he under any necessity by reason of his character as innkeeper? His duty as innholder is to furnish accommodations to guests; none others: to keep a house of entertainment. What kind of entertainment? The necessities of a home to those who have no home; to guests. The qualifications of an innholder are that he has necessaries fit and suitable for the entertainment of travellers, and resides at a proper place or stage for their accommodation. That is the object of establishing taverns. It is the duty of the keeper of a tavern to entertain such guests, and to supply his boarders with necessaries; but it is neither his duty nor his privilege to keep an open bar and deal out liquors to neighbors, who are not travellers nor boarders, on the Sabbath. (3 Jac. Law. Dic. 450-1-2.) The innholder is liable for the goods of a traveller, but not of another. (Smith Lead. Ca. Caly's.) Granting for the argument that liquor is a necessary, the innholder is not bound to sell it to any other than a guest. He would not even be bound to sell bread to another. He is not bound to keep liquor at all. He may lock up his bar, not only on the Sabbath, but on every other day. Was the act of selling this liquor necessary in itself? The kind of necessity meant is an actual necessity, such as burying the dead and providing for the sick. The English cases establish that a baker may sell a dinner to *Page 135 a particular person on Sunday, because the man must eat; but he may not sell bread, generally. (1 Hawk. 15; 2 Burr. R. 785; 5T. R. 489; Cowp. 640; 21 Eng. Com. Law 261.) It is true that this act has not been hitherto enforced, but it is still a law on the statute book; and if the construction which we contend for be true, this court cannot do otherwise, (nor could it do better if it had a choice,) than to wake it up and enforce it.
Gilpin, Attorney General. — The question arises under the statute alone. The object of the act authorizing taverns seems to be the convenience to travellers exclusively. Quere. Is a tavern keeper bound to entertain any other; to take a boarder. The courts of this State have decided that any contract made on the Sabbath is void. Quere. If an individual were to go into a tavern on Sunday and run up a score for liquor, could the tavern keeper recover? And if he could not recover the price is he bound to sell? How can the license vary this?
Rogers. — That argument goes too far. If the license will not enable the innholder to recover for liquor, because his contract on the Sabbath is void, he could not recover for a dinner sold to a traveller; though it is admitted he is bound to sell it. A contract necessary to be made on the Sabbath would be sustained, though general contracts might not be.
Wales, in reply. — The question of morals in reference to what the law ought to be, can have no place in the consideration of what the law is. This act, passed in 1795, has never before been considered as applicable to innholders. For more than half a century the people of this State have, without an exception, given a construction to this act such as we contend for. The act is similar to the Pennsylvania law of 1705, which was afterwards by supplements, made to regulate the abuse of selling on Sunday. The first section of the act is levelled generally against all kinds of worldly business; yet the subsequent sections enumerate particular occupations. Why are these named if they were designed to be included in the general prohibitions of the first section?
The object of the act is not to compel an observance of the Sabbath by penalties; it would be as unwise as impracticable to attempt to punish the moral offence; but it is merely to prevent such public and open profanations of the Sabbath as will disturb the public quiet and sanctity of the day. Our statute is founded on the English statute 29Car. 2, ch. 7. Yet under that act selling meat on the Sabbath *Page 136 has been considered lawful. (4 Blac. Com. 63; 10 C. LawRep. 61; 3 B. C. 232; 1 Taunt. Rep. 184. SeeState vs. Chandler, 2 Harr. Rep. 557.)
Conceding the right and the duty of the innholder to entertaintravellers on the Sabbath, they say that it is not necessary for others; but can there be any necessity for travelling on the Sabbath? So far as the public quiet and the sanctity of the Sabbath are invaded, it is more reprehensible to hold out inducements to the passenger who travels on the Lord's day, than to furnish a glass of lemonade or brandy and water, as a refreshment, to citizen or stranger, in a quiet way, on the Sabbath. Once commence these restrictions and where are they to stop? Why allow a man to shave on the Sabbath; or to clean his boots, or cook a warm dinner? All these may be dispensed with, and usefully so; but these are matters which have been left by universal concession, as the general business of an inn-holder has been considered, as out of the meaning and object of the act against a profanation of the Sabbath.
In the construction of this act we ought to look at the state of society at the time it was passed. At that day no one imagined that it prohibited a tavern keeper from selling a glass of brandy and water? And its meaning cannot have changed by a change of public sentiment. The cotemporaneous exposition of a statute is important in its construction.
For what purpose are taverns licensed? For general accommodation. I very much doubt the policy of a law that would prohibit the sale of liquor to residents, any more than to travellers and strangers. It might induce many who would be satisfied with a quiet glass of brandy at the tavern, if they could not get it there, to bring it to their homes, and drink before their families. (1 Taunt Rep. 184.)
This argument was had before the Chancellor, and Judges Booth, Harrington, Layton and Milligan. Before the judgment was pronounced, Judge Layton resigned his office, and Judge Hazzard succeeded him; so that the decision announced was that of the Chief Justice and Judges Milligan and Hazzard, who reversed the decision of the mayor. The Chancellor and Judge Harrington dissented.
Chief Justice Booth delivered the apinion of a majority of the court. The record in this case sets forth that the defendant was the keeper of an inn or public house of entertainment in the city of Wilmington, duly licensed by the governor, according to the laws of this State: that during the continuance of his license, *Page 137 to wit: on the twenty-fourth day of March, A. D., 1844, being the Lord's day, commonly called Sunday, he sold and delivered, at the city of Wilmington, to Jacob Rice, a resident of said city, at his request, as a beverage and for his refreshment, one small glass of brandy. For this he was charged before the mayor of the city, with having done and performed worldly employment and business on the Lord's day, contrary to the first section of the, act of assembly entitled "An act more effectually to prevent the profanation of the Lord's day, commonly called Sunday." The mayor, after hearing the case, decided, that the act charged against the defendant, not being a work of necessity, or charity, was the performance of a worldly employment, contrary to the said act of assembly, and fined the defendant four dollars, the penalty prescribed by the first section.
The question submitted to the court upon the argument of this case is, whether the keeper of an inn, tavern, or public house of entertainment, by the act of furnishing liquor from his bar on Sunday, is guilty of a profanation of the Lord's day, within the true intent and meaning of the said act of assembly?
The first act of the legislature for preventing the profanation of the Lord's day, was passed in the time of our Colonial Government, in the 13th year of George 2d., A. D., 1740, entitled "An act to prevent the breach of the Lord's day, commonly called Sunday." The first section prohibited any servile work, labour, or business, excepting works of necessity, charity, and mercy; and imposed a fine of ten shillings on the offender. On his refusal to pay the fine, he was to be set in the stocks for any space of time not exceeding four hours. The second section imposed simply a fine on carriers, pedlars, wagoners, c., travelling on Sunday, and on persons selling goods. The third and fourth sections imposed a fine for fishing, fowling, horse-racing, c., and for gaming and dancing on the Lord's day; and the offender on refusal to pay the fine, was to be set in the stocks. The fifth section imposed merely a fine of forty shillings on every innholder, ordinary, or tavern keeper, who should suffer any person or persons to sit tippling or drinking in his house on said day, during the time of divine service. The sixth section directed that all fines and forfeitures under the act should be levied by distress and sale of the offender's goods and chattels.
This act remained in force until it was repealed by the present act passed the 3d of February, A.D., 1795, entitled "An act more effectually to prevent the profanation of the Lord's day, commonly called Sunday." The provisions of the several sections of the act of *Page 138 1740, except the fifth section, were substantially re-enacted by the act of 1794. The latter increases the amount of the several fines, hut omits the punishment of putting the offender in the stocks; and in lieu of it, substitutes imprisonment. It contains no enactment against innholders or keepers of houses of public entertainment, in any respect whatever; but on the contrary, omits the fifth section of the act of 1740, which prohibited their permitting tippling or drinking in their houses during the time of divine service. It is evident then, in passing the act of 1740, thus made expressly to prevent the breach of the Lord's day, that keepers of inns and houses of entertainment were under the immediate notice and attention of the legislature, as well as carriers, pedlars, wagoners, and the other classes of persons specially mentioned in the act, the exercise of whose business on Sunday, would profane the day. The latter in express words are prohibited from pursuing their respective employments on Sunday, but as to the former, there is no prohibition against their exercising their calling in any respect whatever. It is to be presumed that the legislature gave to the subject that careful attention, which its importance demanded; and therefore, the fair inference is, that they considered any prohibition against the business or employment of the keeper of an inn, tavern, or house of entertainment, unnecessary; and that the only enactment deemed advisable, was that contained in the fifth section against permitting persons to tipple or drink during the hours of divine service. By no reasonable construction then, can this act he considered as including the business or calling of the innkeeper, or any part of it.
To repel the force of this argument it was insisted on by the counsel for the prosecution, that the terms of the first section prohibiting all business of a worldly nature on Sunday, include the case of the innkeeper; and that as furnishing liquor at his bar, was the milder offence; he was therefore, by that section, fined for it only ten shillings; but for the more odious and aggravated offence of permitting tippling and drinking during divine service, he was fined under the fifth section, forty shillings. This however, is begging the question. It takes for granted the very point in dispute; and involves the inconsistency of punishing the milder offence by an ignominious public exposure in the stocks, and exempting from that disgrace, the party committing the more aggravated offence. Besides, if, as is now contended, the furnishing of liquor at the bar of an inn on Sunday, be a business of such a nature, as desecrates the day, and is so destructive to public morals and the best interests of society, it is a little remarkable that *Page 139 such an offence should pass unnoticed by the legislature, not only in the acts of 1740 and 1795, but in all the various acts of assembly that have been passed from time to time, from the earliest period of our colonial government to the present day, in relation to inns, taverns, and houses of entertainment; — while the pedlar, for the mere act of travelling, however unobtrusively, with his pack or wagon on Sunday, although he neither sells nor attempts to sell an article of his wares, is visited with a fine of twenty shillings by the act of 1840, and eight dollars by the act of 1795. The conclusion, therefore, to be drawn from the two acts, is, — first, That the act of 1740 did not intend to impose any penalty on innkeepers, except for the offence prohibited by the fifth section, — and secondly, That the act of 1795, by omitting that section altogether, did not intend to prohibit the exercise of any part of their businesss or calling on Sunday. Independently of the plain import of the two acts to be ascertained from an examination of them, a strong argument arises from the uniform construction heretofore given by the legal profession, and from the general acquiescence and tacit admission of all classes of the community on the subject; nor has a single instance occurred from the year 1740 until the present case, a period of one hundred and four years, of any proceeding under the first section of the act of 1740, or the act of 1795, against the keeper of an inn, tavern, or house of public entertainment, for furnishing liquor at his bar on Sunday. It has been reserved for the ingenuity of the present day to discover such an offence. In connection with this part of the case, it may be remembered, that our act of assembly is similar to the English statute 29, Charles 2d.; and to the Pennsylvania act of 1705, against the profanation of the Lord's day: That in most, if not all of the States of the Union, similar legislative enactments have existed and are still in force. But with all the industry which has been put into requisition, and with all the ingenuity which has been brought to bear upon this question, no case has been produced or cited, and it is believed that none can be, from any English or American law book, of any proceeding or prosecution against an innkeeper, or tavern keeper, under any such statute or enactment for profaning the Lord's day, in merely furnishing entertainment on Sunday, either in provisions or liquor. This of itself, affords a conclusive argument, that the exercise in this respect, of the business of an innkeeper or tavern keeper, has never been considered, either in England or in the United States, as an infringement of the respective legislative enactments of either country on this subject. *Page 140
But as the words of the act of assembly now in force in this State are very extensive in their meaning, it is asked what kind of business was contemplated by the section in prohibiting any worldly employment, labor or business, on the Lord's day? The answer is, no other than such as openly profanes the sanctity of the day, and violates public order and decorum. The law intended to compel the external observance of the day, by preventing the open show, bustle, and tumult of business. Hence, if a person in the privacy and retirement of his own house, engages in business of a worldly nature on Sunday, he is not amenable to the law; although he incurs the moral guilt of transgressing against the injunctions of religion. The municipal law does not undertake to punish the violation of religious duties, unless the individual by such violation, offends against those social duties which, as a member of civil society, he is bound to observe; or unless his evil example is attended with consequences injurious to the community. Therefore, a cook who prepares a dinner on Sunday, a mechanic or merchant who writes a letter of business, or a lawyer who studies his books on that day to prepare a case for argument, although each is engaged in his worldly employment, no one of them is within the prohibition of the act of assembly. For the same reason the keeper of a well regulated inn, or tavern, does not offend against the law by the mere act of furnishing his guests with food or liquor on Sunday. He no more violates good order and decorum, than a private person does, who invites his friends to his house on that day, for the same purpose.
The nature of the employment, and the duties, rights and liabilities of the keeper of an inn, tavern, or public house of entertainment, clearly indicate that the legislature never designed the first section of the act to include his case. Originally an inn, according to the definition of Webster, signified "a house for the lodging and entertainment of travellers;" and a tavern signified "a house licensed to sell liquors in small quantities, to be drank on the spot." When tavern-keepers began, besides liquors, to furnish food and lodging to travellers, the term tavern came to be used as a word of the same sense and signification with the term inn. Hence the same lexicographer says, "in some of the United States, tavern is synonymous with inn, or hotel, and denotes a house for the entertainment of travellers, as well as for the sale of liquors licensed for that purpose." Both terms it is apprehended are now synonymous in the United States; and have been so in England, so far back as the reign of Elizabeth. The principles of law therefore laid down in the books, *Page 141 in relation to inns and innkeepers, are equally applicable to taverns and tavern-keepers, hotels, and public houses of entertainment.
In this State, no person can keep an inn without a license, although the license uses only the words "tavern or public house of entertainment." The mere granting of such license in itself, confers the privilege of retailing liquors. By a late act of assembly passed the 24th of February, 1845, if the party is to be prevented from retailing liquors, the license must in positive terms expressly exclude such privilege. The rights, duties and responsibilities of the innkeeper are regulated by the common law and by statute. In this State, to keep an inn without a license, is an indictable offence. "When the innkeeper obtains his license, he takes upon himself a public employment, and he is bound to serve the public. The employment is for the benefit of the public, and not for his own private gain. He is obliged to keep his house open on Sundays, as well as on all other days. He cannot refuse to receive, and furnish with food and liquor (unless liquor is excluded by his license,) all persons who are willing to pay a price adequate to the sort of accommodation provided; and who come in a situation in which they are fit to be received, and demean themselves with proper decorum. If he does refuse, without a reasonable excuse, or if he furnishes unwholesome food or liquor, an action lies against him. He is bound to keep a supply of wholesome provisions and liquors, according to the style and kind of accommodation which he holds out to the public. His charges were at one time regulated by law. By the 8th section (although now repealed) of an act of assembly passed the 13th of Geo. 2, vol. 1, 195, the Court of Quarter Sessions was required annually to settle the rates of liquors; and if the innkeeper charged beyond such rates, he was subjected to a fine. It does not therefore seem reasonable to suppose, that the legislature intended to interfere with the public employment, rights and duties of the innkeeper; or that by mere implication, it can be made a criminal offence in him to exercise any part of his calling on Sunday. The act of 1795 is a penal statute and authorizes a summary conviction. It is, therefore, to be construed strictly in respect to the offences prohibited; and as it contains no express or positive terms against the business or employment of innkeepers on Sunday, but does against the business of other classes and descriptions of persons, it ought not to be construed to repeal the common law by implication, and thus to deprive innkeepers of their rights and release them from their duties to the public. A penal statute, says Best, C. J., 3 Bing. 580, shall not be extended by construction. *Page 142 No man incurs a penalty, unless the act subjecting him to it, is clearly within the spirit and the letter of the statute imposing such penalty. If these rules are violated, the fate of the accused is decided by the arbitrary discretion of judges, and not by the express authority of the laws.
The present prosecution is under the first section of the act of 1795, which prohibits any worldly employment, labor or business, on the Lord's day. The argument is, that this section includes the case of the innkeeper. Surely then, it prohibits his worldly employment. The result is, that he is subjected to the penalty prescribed by the first section, for keeping his house open at all reasonable hours (which by the common law he is bound to do,) for the entertainment of travellers and other guests. The argument therefore proves too much. Hence it assumes, that all the section intended to prohibit, was the furnishing or retailing of liquor. But on what principle can a penal statute which prohibits a man's worldly business on Sunday, be so construed as to afford him an immunity in the exercise of one part of his calling, and to punish him for the exercise of another part? On what principle is he exempted, when he provides a dinner; and punished when he furnishes a glass of wine or brandy? To escape from this dilemma, the argument further assumes, that it forms no part of his duty to keep or furnish liquor; that to retail it from the bar, is as much a worldly employment, as to retail goods out of a store. It follows by this mode of argument, that as the license of the storekeeper cannot exempt him from the penalty of eight dollars under the second section of the act, therefore the innkeeper cannot be exempted from the penalty of four dollars under the first section.
To this it is sufficient to reply; First, that the business of the innkeeper as heretofore remarked, is viewed by the law as a public employment; that his only authority to engage in it, is his license; and that having taken out his license, the law requires him to keep a supply, both of provisions and liquors. He can, therefore no more dispense with furnishing the latter, than he can the former.Secondly, there is an obvious distinction between the case of the storekeeper and that of the innkeeper. The latter is not even mentioned in the act; but the sale of goods, wares and merchandise, is prohibited in express terms by the second section. But if the retailing of liquor at the bar is considered as a sale of goods, the proceedings in the case before the court are erroneous; because they ought to have taken under the second section, and not under the first. But a sale in its legal signification, cannot he predicated of the act of furnishing *Page 143 liquor in a tavern or inn, any more than it can be predicated of the act of furnishing a dinner, or a night's lodging. When entertainment is provided, it cannot correctly be called a sale by the landlord, or a purchase by the guest. The money or price charged, is not for the sale of a dinner, or of liquor, or lodging; but for the accommodation afforded to the guest in furnishing a room, lights, fire, attendance of servants, and all other things that constitute the comforts and convenience of an inn, as well as the eating, drinking, or lodging. Hence it was decided in England, prior to the statute 6 Geo. 4, that an innkeeper under their statutes of bankruptcy, could not be declared a bankrupt.
The whole argument for the prosecution is founded in the fallacy of assuming that none but travellers can be guests at an inn or public house of entertainment; and therefore, although the duty of the innkeeper requires him to accommodate the traveller and entertain him with food, drink and lodging on Sunday, as well as any other day, it is no part of his duty to entertain a person who resides in the same town or city where the public house is kept. Hence, by this process of reasoning, if a traveller arrives on Sunday, the keeper of the public house or inn is bound to provide him with a dinner, if required, and with wine or other liquor. If the innkeeper refuses, he is liable to an action. But if a resident of the same place where the inn is kept, having called on the traveller as a friend, sits down to dinner with him, or calls for a glass of wine or brandy, the innkeeper is guilty of a profanation of the Lord's day, under the first section of the act of assembly, and is liable to a fine of four dollars. It seems to be admitted, that under some peculiar circumstances, the innkeeper may perhaps, without incurring the penalty, furnish a dinner to the resident citizen; such as his house being closed, his family absent, or his cook away. The innkeeper, therefore, must particularly inquire into all these matters. If he furnishes the dinner, and they turn out to be untrue, he must pay the fine. If they be true, he is excused for the dinner; but must pay the penalty for furnishing the glass of liquor. No penal statute was ever intended to deal in matters and inquiries of such variety. Webster, in defining an inn, as before referred to, says "in America, an inn is often a tavern where liquors are sold to travellers and others." Who are meant by "others"? Surely persons residing in the same town or city, or its vicinity; all persons who are not travellers. Justice Bayley says, in Thompson vs. Lacy, 3 Barn. Ald. 387, that an innkeeper is bound to receive *Page 144 all persons who are capable of paying a reasonable compensation for the accommodation provided.
In the Six Carpenters' Case, 8 Coke's Rep. 290, it is laid down, that the law gives authority to all persons to enter into a common inn or tavern; and therefore, if a person having entered into the inn or tavern, commits a trespass, as if he carries away any thing; he shall be a trespasser ab initio. Why shall he be a tresspasser ab initio? Because the law gives him authority or license to enter the inn, and not to the innkeeper to exclude him; for if the entry were given by innkeeper's authority or license, the party would not be a trespasser ab initio. "And the reason of this difference," Lord Coke says, "is, that in the case of a general authority or license of law, the law adjudges by the subsequent act,quo animo, or to what intent, he entered. But when the party gives an authority or license himself to do any thing, he cannot for any subsequent cause, punish that which is done by his own authority or license; and therefore, the law gives authority to enter into a common inn or tavern." The six carpenters were not travellers; but nevertheless they were guests. They entered the inn for refreshment — for the purpose of drinking wine; and the innkeeper was bound by the authority of the law to receive them. It was not in his option to reject them.
In Bennet vs. Mellon, 5 Term Rep. 173, the plaintiff's servant took his master's goods to an inn, to be left in charge of the innkeeper, as a common bailee for a few days. The innkeeper refused to take charge of them, as he had a right to do. The servant called for a glass of liquor, set down, and put the goods behind him. While drinking, the goods were stolen, and the innkeeper was held liable for the loss. On what ground was he held liable? Not on the principle that to constitute a guest, the party must be a traveller; but because the law having given the party the authority to enter the inn, he was a guest, although he remained there but for a few minutes for the temporary refreshment which he had ordered.
In Thompson vs. Lacy, 3 Barn. Ald. 283, a house of public entertainment in London, where lodging and entertainment were furnished for all persons paying for the same; and which was merely called a tavern or coffee-house, but not frequented by stage coaches, and wagons from the country, and had no stables, was considered as an inn. A person having resided in London, in furnished lodgings, received accommodation in the tavern or coffee-house. He was considered a guest, although he was not a traveller; and the *Page 145 owner of the house was held subject to all the liabilities of an innkeeper.
Upon the well settled principles of law, it follows, that all persons who come to an inn, or tavern, or public house of entertainment, in a situation fit to be received, who behave with propriety and decorum, and are willing to pay a price according to the accommodation provided, have a right under authority and license of law, to be received as guests. Therefore a resident of the same town, or city, where the inn is situated, conducting himself with propriety, has a right to enter into it as a guest, for the purpose of entertainment or refreshment; and the innkeeper is hound to receive him. If he behaves in a disorderly manner, the innkeeper, after first requesting him to depart, has a right to turn him out of his house.
But it has been asked, shall the innkeeper be permitted to keep an open bar on Sunday, and allow persons to assemble in the bar-room, to drink and tipple — profane the sanctity of the day, and by the evil example destroy the morals of the community, and the best interests of society? By no means. The common law affords an ample remedy. The keeper of an inn, tavern, or house of entertainment, who conducts himself in such a manner, either in the entertainment of travellers, or other persons, or in permitting such assemblages in or about his house on Sunday, as profanes the Lord's day, or violates public order and decorum, or shocks the religious sense or feelings of the neighborhood, is guilty of a nuisance at common law, and may be indicted, fined, imprisoned, and his house suppressed; according to the aggravated nature or enormity of his offence.
If he suffers any persons to continue drinking or tippling at unseasonable hours of the night, or suffers, at any time, any drunken or disorderly person to remain in his house, or permits any gambling for money, liquor, or other thing, he may be indicted and fined under the first section of an act of assembly entitled "An act concerning public houses of entertainment, and the unlawful selling of liquor or strong drink." (Dig. p. 519.) And for the third offence under that act, he is deprived of his license for the space of three years next ensuing his conviction.
The law has thus provided adequate remedies for the evils that may arise from a disorderly inn or tavern, without perverting the act of assembly of 1795, to a purpose never intended by its framers. If retailing or furnishing liquor at the bar of a public house on Sunday, is an evil which ought to be suppressed, it becomes the duty of the legislature of a christian community to prohibit it. But it ought *Page 146 not to be effected by an assumption on the part of the judiciary, of the power of legislation.