The defendant below who, according to his plea, is "an innholder in the city of Wilmington, duly licensed by the governor," was fined by the mayor of that city "for doing worldly employment and business on the Sabbath, by selling a small glass of brandy to a resident of the said city, the same not being a work of necessity or charity." The defendant's license authorizes him in the usual form to keep a tavern, or public house of entertainment, which embraces both a tavern and an inn. The legal definition of an inn is a house where the traveller is furnished with every thing he has occasion for while on his way." Our act of assembly requires that the keeper of a public house shall have "necessaries fit and suitable for the entertainment of travellers," and that his house shall be "situate in a proper and convenient place and stage for the entertainment of travellers." Both by the common law, then, and the statutes of Delaware, public houses are licensed for the convenience of travellers; to afford a temporary home and needful refreshment to those who being from home, are under the necessity of resorting to such a place of entertainment. Hence it is said in Calye's case, (8 Co. 32,) "that common inns are instituted for passengers and wayfaring men; for the latin word for inn is diversorium, because he who lodges there is quasi divertens se a via; and so diversoriolum. And therefore, if a neighbor who is no traveller, as a friend, at the request of the innholder, lodges there, and his goods be stolen, c., he shall not have his action; for the writ is ad hospitandos homines, c., transeuntes in eisdem hospitantes." "So if an host invite one to supper; and, the night being far spent, invite him to stay all night, and he is after robbed, yet shall not the host be charged; for his guest was notraveller." (5 Bac. Ab. 234.)
A tavern is a house licensed to sell liquors in small quantities, to be drank on the spot. It has no reference to any other kind of accommodation, nor any reference to the character of the purchasers of the liquor, whether as travellers or residents. The defendant, as is usual in this State, combines the two occupations, and keeps an inn for the entertainment of travellers, and a tavern for the sale of liquor; both of which he is duly licensed to do; and the question presented to us on this record is, whether in the exercise of this occupation the sale of a glass of brandy on the Sabbath, to a person who is not a traveller but a resident of the same city, is a violation of the act *Page 147 against the profanation of the Lord's day. That act provides, that if any person within this State shall do or perform any worldly employment, labor or business whatsoever on the Lord's day, commonly called Sunday, (works of necessity and charity only excepted) and be duly convicted, thereof, he shall forfeit for every such offence, the sum of four dollars.
If the defendant be exempt from the prohibition of this law, it must be either because the nature of his occupation necessarily conflicts with it, and the law is therefore, as to him, impliedly repealed by another law under which his license is granted; or he must show himself to be within the exception of the statute, by establishing that the act for which he is prosecuted is a work of necessity or of charity. And this has been the defence. It is not pretended that the act of selling the liquor is not the doing worldly employment or business, but the defendant in his plea and in the argument, rests his defence upon his license; namely, that as a licensed innholder and tavern keeper, he is not only authorized, but required to keep his house open for the public, and receive and entertain all guests, travellers and others, on the Sabbath as on any other day, and to sell liquor without any other restrictions than such as are imposed by the law under which he is licensed.
The different terms used to designate the defendant's occupation have caused some embarrassment to the investigation of the duties and privileges growing out of his business. He styles himself in his plea an innholder; which is, perhaps, the best general designation. His license merely authorizes him to keep a tavern or public house of entertainment; which includes under our statute a tavern, inn, ale-house, ordinary and victualling-house. Whatever duties or rights belong to either of these are all combined in his character and occupation as an innholder; which is the highest designation and therefore the best. These several occupations were very distinct by the common law; but the usual distinction in later times is between an inn and an ale-house. Thus the books say, "every inn is not an ale-house, nor every ale-house an inn," but if an inn uses common selling of ale, it is then also an ale-house; and if any ale-house lodges and entertains travellers it is also an inn. A tavern keeper, by the common law was not bound to entertain travellers and provide them with any thing they might have occasion for. His occupation was to sell liquor by the small measure as the retail merchant's is to sell it by the quart or greater measure, and he is not bound, neither is he authorized, to sell his liquor in any other manner or at *Page 148 any other time than the law allows others. The law which prohibits merchants from selling the quart equally prohibits him from selling the gill on the Sabbath day, unless in either case a special necessity is shown. But the innkeeper is bound to entertain travellers at all times and to furnish them with every thing they may have occasion for while on their way; and if this be his obligation, it then becomes his privilege to furnish a guest with liquor, if required, on the Sabbath. I enter into no question whether liquor be a necessary; if called for and used in the course of the entertainment of a guest, it is in the line of that occupation which the law allows to be carried on on the Sabbath day, because it is necessary that it should be done on that day as well as any other. But this does not make it necessary for the tavern keeper alone, or the innholder and taverner combined, to keep an open bar and sellliquor as a business to any one who may call for it on the Sabbath, and who has no other connection with the inn as a guest than being a casual dropper-in for the mere purpose of buying a glass of liquor. The occupation of innkeepers is not to sell liquor; their duty extends chiefly to the entertaining of travellers, finding them victuals and lodgings, and securing the goods and effects of their guests. (5Bac. Ab. 230.) An innkeeper cannot (as a trader,) be a bankrupt; for though he buys provisions to be spent in his house, yet he does not properly sell them, but utter them at reasonable rates considering the attendance of servants, furniture of houses, c. The contracts with innkeepers are not for any commodities in specie, but they are contracts for house room, trouble, attendance, lodging and necessaries; (5 Bac. Ab. 329,) all of which shows that the selling of liquor is not within his duty, and therefore not his privilege unless it be connected with the entertainment of a traveller as his guest. A tavern keeper may doubtless sell a glass of liquor without furnishing other entertainment, and he may sell it to a neighbor as well as to a stranger; his license authorizes him tosell liquor by the small measure, as well as to keep a house of public entertainment; but the question here is of his right to sell a glass of liquor to a neighbor on the Sabbath, though the law prohibits any person from doing any worldly employment, labour, or business on the Lord's day. The defence is not that he has a right to vend liquor, but that being bound to entertain guests he may lawfully furnish the liquor as a part of the entertainment.
The present case turns then on the question whether J. Rice was a guest at the inn of the defendant, and whether this liquor was *Page 149 furnished him as such. Was he a traveller who had been received at this inn as a guest demanding such entertainment as the defendant was bound to furnish. If he was, the defendant is excused for this act of worldly employment done on the Sabbath, under the plea of necessity, he being compelled to do it. For an innkeeper is bound to receive a traveller as a guest at his house and to entertain him; and it is no defence that the guest was travelling on the Sabbath. (5 Bac. Ab. 232.) If he refuse to receive him he is liable to an action on the case for damages, and may also be indicted and fined. (Iden. 232.)
The argument that Rice was the guest of the defendant drawn from the fact that he sold him a glass of liquor is a complete petitio principii. The very question before the court is whether the defendant had a right to sell this glass of liquor; and surely it cannot be an argument that he had the right to sell it because he did sell it. It is conceded that the defendant as an innholder could serve liquor to his guests in the course of their entertainment, but to argue that Rice was a guest because the defendant sold him liquor, and that the defendant sold him liquor lawfully because he was a quest is reasoning in a circle. The act of selling the liquor is unlawful in itself unless it was served out in the way of entertaining a guest; the relation therefore of landlord and guest must exist before the act, and must appear otherwise than by the act, which that relation is to excuse. But looking at the record there is no pretence there that Rice was the defendant's guest otherwise than as the purchaser of this liquor. The prosecution is for "selling and delivering" the brandy; and the plea is that the defendant being an innholder in the city Wilmington, duly licensed, "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 the said city." Was the defendant authorized to make that sale on Sunday? Is there any evidence that he had before the sale received Mr. Rice as a guest; and was he bound to receive such a person as a guest in his house?
I have already shown that neither the objects for which inns are licensed nor the necessities of the public require the entertainment of others than travellers; and the cases so expressly confine the liabilities of innkeepers to the case of travellers that even a permanent boarder is not regarded as a guest but as a quasi lessee. (Bac. Ab. 234.) The cases in Roll, and Brownl. referred to in Bacon, are placed expressly on the ground that the guest was a neighbour and no traveller. And it was decided inRex. vs. Luellin, 12 Mod. 445, that an indictment *Page 150 against an innkeeper for not receiving a sick person, must state that he was a traveller. That is conclusive of this case if it be the law; for if an indictment against an innkeeper for not receiving a guest must aver that he was a traveller, the plea of an innkeeper excusing himself for doing worldly business on the Sabbath by serving a guest, must aver that he was a traveller.
The case of Grinnell vs. Cook, a late New York decision, reported 3 Hill 485, is full on this point. It was an action by Grinnell, an innkeeper, against Cook, a deputy sheriff, for selling the horses of one Wm. Tyler, in plaintiff's stables without paying plaintiff's bill for their food. The innkeeper and Tyler were both residents of the same town, and the horses were put in plaintiff's stables by Tyler. He claimed compensation for feeding the horses on the ground that they were put there by Tyler, who for this purpose was his guest. The court said, the innkeeper is bound to receive and entertain travellers and is answerable for the goods of his guests. On this account he has a lien on the goods. The lien and the liability must stand together. "Tyler, who owned the property was not a traveller, nor was he in any sense a guest in the plaintiff's house, and I think it quite clear that the plaintiff was not bound to receive and take care of the horses." Again the judge says, — "now in this case, Tyler, who owned the horses, never was the plaintiff's guest; nor was he a traveller or transient person. He was the plaintiff's neighbor." Why was he not a guest? The only two reasons assigned or which could exist, were that he was not personally, and had not been, an inmate of the tavern, but took his horses there: and 2d, that he was no traveller, but a resident of the same town. The first reason is an unsound one, and the case rests and is sustained, entirely on the latter reason, namely, that the innkeeper was not bound to take the horses from a neighbor, and therefore, he was not a guest as he would have been if he had been a traveller. The judge says, the relation of guest to the innkeeper must exist to give him the lien, and he admits that to make him a guest he need not be actually infra hospitium at the time the lien accrued. In Yorke vs. Grenaugh, (2Ld. Ray. 866,) it was decided that, "if a man set his horse at an inn, though he lodge in another place, that makes him a guest." And this, though not unquestioned, has ever since been considered as well settled law, as the court said in Mason vs. Thompson, (9Pick. R. 280,) when it was decided that to constitute a guest it is not essential that he should be a lodger or have any refreshment at the inn. If a person commits his horse to an innkeeper to be fed he is *Page 151 a guest although he do not himself lodge or receive any refreshment at the inn. The same law was recognized in Simpson vs. Hand, (6 Whart. 311, 322,) and in the note to Smith's LeadingCases it is shown that Grinnell vs. Cook rests solely upon the fact that the person owning the horses was not a traveller hut a resident of the town. Had he been a traveller or transient person the innkeeper would have been bound to receive his horses; this would have made him a guest, and the plaintiff's lien would have attached. It is an authority on the very point that rules this case. The defendant as an innholder was not bound to furnish the liquor to Mr. Rice, who was no traveller or transient person and not his guest; he cannot therefore, excuse himself for violating the Sabbath by his plea of necessity.
My opinion therefore, is, that an innkeeper cannot keep open bar and sell liquor to all persons on the Sabbath. He is bound to receive a traveller on that day as on any other day, and to furnish him with refreshments, liquor included; and in thus serving a guest he is not liable to the penalty of the act against the profanation of the Lord's day. It is, as to him, a work of necessity. But he is not bound to sell liquor on the Sabbath day, and not being bound, he is not at liberty to sell it to a person who is not a traveller but a resident of the same place. This is the plain, natural construction of the act to prevent the profanation of the Lord's day, in connection with the acts for regulating innholders, tavern keepers, c., and it harmonizes them all, and gives full effect to all. It allows the tavern keeper to perform worldly business on that day just so far as the nature of his business requires for public necessity under the exception for works of necessity; and in no other form is he excepted from the first mentioned act. It is a general prohibition of every person from doing worldly business on the Sabbath, and neither in it nor in the acts regulating taverns is there any permission to an innholder to carry on his business on the Sabbath, more than any other; the merchant for instance; either of them can excuse himself for a violation of this general law by a plea that his work was a work of necessity or charity. The merchant may sell clothes to bury the dead, or liquor for the sick on Sunday, and the tavern keeper may entertain guests on this day as on any other day, for this is necessary; but they must be guests, such guests as have a right to be in his house as guests on the Sabbath, and such as he is bound to receive and entertain. A neighbor who has a home in the same town is under no necessity to become his guest, nor is he necessarily entertaining him as a guest by selling him a glass of liquor. It may be that such a person might *Page 152 become the guest of a tavern keeper, but it ought to be on a special admission as a guest, showing the necessity, as that his own house was closed, or that he was passing from one place to another, so as to make his entertainment at the tavern as a guest convenient and desirable. As in the case cited from 3 Barn. Ald. 283, which is the principal case relied on, and I may say the only case cited where the guest was other than a passenger away from his own home, and that was the case of a person who had lived theretofore in furnished lodgings in the great city of London, but desiring to change that mode of living, applied at the defendant's coffee-house to be taken in as a guest. He was seeking a home, having no other. The point in the case was whether the coffee-house could be considered an inn; the plaintiff could well be a guest without violating the principle I have assumed. I say this is the only case because the Six Carpenter's case was one of persons calling at a tavern, not on a Sunday, to buy liquor. But Mr. Rice in this case sought in no sense to become the guest of the defendant. He called to buy a glass of grog there, as any customer would on another day call on the retail merchant to buy a quart. Why should the license of the tavern keeper allow him to sell the gill any more than the merchant to sell the quart on Sunday? Upon what principle can it be said that the tavern keeper may sell liquor when the merchant may not, unless it be in the entertainment of a guest? The license authorizes each to sell liquor, generally, as a business; the law prohibits both alike from doing this or any other business on the Sabbath. Both then are alike prohibited; and the tavern keeper only excuses himself by showing that the person to whom he sold was his guest, and such a guest as he was bound to receive and entertain.
These laws must receive a connected construction giving them both effect if we can. We have no authority to repeal either, neither does it repeal either to say it is an old law and has not before been enforced. If the public has borne with the abuse of a law for a long time without bringing it before the judicial tribunals for a construction, it is no reason why the court shall, construe it differently from its plain meaning because the public have hitherto acquiesced in a different construction, which the innkeepers have placed upon it for their own profit. It is very easy to account for this construction. The innholder is authorized to entertain guests on Sunday and supply them with liquor, and very slight acts will make transient persons and travellers guests; a slight extension of this privilege which introduces neighbors and loungers, opens the bar for a regular *Page 153 sale of liquor on Sunday; degrades the inn, which is established for the comfort of travellers, into a tippling house; destructive of their comfort and annoying to the public; and is an abuse of the privileges which belong to the legal character of an innholder. The construction which I place upon the law, and which I submit, lies plainly on its face, leaves to the innholder all the privileges that belong to him in the entertainment of guests; protects him against the inroads of idlers on the Sabbath; prevents the gradual declension of inns into tippling houses, which is far better than punishing them after the indulgence of your law has made them such; protects the public against this nuisance, while it affords the travelling public all conveniences for which inns were established; and enforces the law against the profanation of the Lord's day by the open and public sale of liquor at a tavern bar, without necessity and without excuse.
It may be said that this is imposing on an innkeeper the task of distinguishing between travellers and residents, which, in a city, it may be difficult to do; but it must be remembered that this is an excuse which he offers for violating a general law, and he ought to make it out. He knows, or he ought to know, who are his guests. No one can make himself a guest without his permission; and he may satisfy himself of the propriety of accepting as a guest any one who presents himself on Sunday, especially when he comes merely for the purpose of buying liquor, which the innkeeper has no right to sell to others than guests. And in a doubtful case there would be but little danger of a conviction. But in the present case there is no matter of doubt presented; the record shows and was designed to show, for the case was made for the express purpose of raising the question, that Jacob Rice was a resident of Wilmington, and that he called at the defendant's inn for the purpose of buying a glass of liquor.
The Chancellor said the different views of the question had been so fully presented, that he thought it unnecessary to add any thing further than he fully concurred in the conclusion, and assented to the views presented by Judge Harrington.
Judgment of reversal.