By the Court,
Allen, J.The duties devolved upon commissioners of excise by the “ act to suppress intemperance and to regulate the sale of intoxicating liquors,” (Laws of 1857, ch. 628,) call for the exercise of discretion and judgment, and are, to some extent, discretionary and *315judicial. The commissioners cannot be coerced in the exercise of their discretion, by mandamus or otherwise, and for a mere mistake are not liable either civilly or criminally. But for an unlawful and corrupt exercise of the powers vested in them they are answerable criminally. They cannot willfully and knowingly violate the law with impunity; and while they are only responsible for good faith and integrity, they cannot from corrupt motives either grant or withhold a license improperly, and shield themselves under the judicial character of their office. The law is well, guarded, and is distinct and plain in its provisions regulating the duties of the commissioners in the granting of licenses ; and the legislature intended to, and I think have, hedged it about with all practicable safeguards necessary to secure all the requisite accommodations for the traveler, and at the same time protect the public against a flood of mere tippling-houses and nurseries of intemperance—drinking places not connected with a place for the legitimate entertainment of travelers. Whether the law, or any law distinguishing between the traffic in intoxicating drinks and other commodities, is wise or unwise is not for us to decide. The legislature is supreme in its action on that subject, and we have only to give effect to the laws as they are enacted. It was said by the court of King’s Bench, in the last century, that “the mischief of granting a license improperly was infinitely greater than that of refusing one; for in the former case it might be productive of injury to the whole community, while in the latter the grievance was felt only by the individual.” (King v. Holland, 1 T. R. 692.) A criminal information was sustained in that case for granting a license to an improper house. Lord Mansfield, in Rex v. Young, (1 Burr. 560,) speaking of the discretionary power vested in commissioners of excise, says: “But though discretion does mean (and can mean nothing else but) exercising the best of their judgment upon the occasion *316that calls for it, yet if this discretion be willfully abused it is criminal, and ought to be under the control of this court.” The information in that case was refused, because the justices had “ acted both honestly and legally in refusing to grant the license in a place where there was already a sufficiency.”
W An indictment for willfully and corruptly granting a' license to a person to sell spirituous liquors as an innkeeper, the commissioners knowing that the applicant was not a man of good moral character, nor a person of sufficient ability to keep a tavern, was sustained, on demurrer, in The People v. Norton, (7 Barb. 477,) and the reasoning of Judge Willard is entirely conclusive. And see, to the same effect, The State v. McDonald, (4 Harr. 555,) and Russell on Crimes, 116. The act of 1857 (supra, § 6) absolutely prohibits the granting of a license to any person to sell strong and spirituous liquors to be drank on his premises, “ unless such person proposes to keep an inn, tavern or-hotel, and unless the commissioners are satisfied that the applicant is of good moral character; that he has sufficient ability to keep an inn, tavern or hotel, and- the necessary accommodations to entertain travelers, at the place where such applicant resides or proposes to keep the same.” And the same statute (§ 8) requires every keeper of an inn, tavern or hotel in a city to keep at least three spare beds, and the necessary bedding, for the accommodation of travelers.”' The terms “inn, tavern or /hotel,” mentioned in the statute, are used synonymously, to designate what is ordinarily and popularly known as an inn or tavern, or place for the entertainment of travelers, and where all their wants can be supplied. The words “inn or tavern” were so used in the prior corresponding enactments. (1 R. S. 679, § 10. Overseers of the Poor of Crown Point v. Warner, 3 Hill, 150.) A “hotel” is an inn or house for entertaining strangers'or travelers. An “inn” ■ is a house for the lodging and entertainment of travelers. *317In America, Webster says it is often a tavern where liquors are furnished to travelers or others. “ Tavern,” the same lexicographer says, is, in some of the United States, synonymous with inn or hotel, and denotes a house for the entertainment of travelers, .as well as the sale of liquors. (See Webster’s Dic.) Bouvier defines an “ inn ” as a house where a traveler is furnished with eveiy thing he has occasion for while on his way; and he gives substantially the same definition of a “tavern.” Bouvier’s Law Dic.) To constitute an inn-keeper, a tavern-keeper, or hotel-keeper, the party so designated must receive and entertain as guests those who choose to visit his house; and a restaurant where meals are furnished is not an inn or tavern. (Wintermute v. Clark, 5 Sandf. 242. Carpenter v. Taylor, 1 Hilt. 193.)
It is very evident that the place of Allen was not an inn, tavern or hotel, and could not have been connected with one, and that he had not the ability at that place to keep a tavern with the necessary accommodations for travelers, or in any way to comply with the statute; and there is no pretense that he proposed, or that it was expected, to use his license at any other, place. It is equally evident that a tavern was not required for the accommodation of travelers, at that place; and that the license was not wanted- for the convenience of a house of entertainment for travelers. But it by no means follows" that because the place wás an unfit place for a tavern, or the license was improvidently or improperly granted, the defendants were necessarily guilty of a criminal offense in granting the license. To constitute an offense the license must have been granted with full knowledge of the facts, and willfully. (See King v. Holland, supra.) The offense consists in the motive and intent with which the act was done. The mere granting of a license which a court or jury might say ought not to have been granted, is not an offense; but the jury must he able to say, from the evidence, that the commissioners, *318or such as are pronounced guilty, knew, at the time, that it was not a proper case for a license under the statute, and nevertheless granted it in willful disregard of the statute ; that is, that they knowingly and purposely disregarded the statute. If they acted in good faith, although erroneously, they cannot be punished. (Commonwealth, v. Bradford, 9 Met. 268.) It is not like the case of an absolute want of power to do the act, as in Rex v. Sainsbury, (4 T. R. 451;) or where a positive duty is imposed by law upon an officer, as in The People v. Brooks, (1 Denio, 457.) Here the defendants had power to do the act, and only a criminal intent could make the act criminal, although erroneously done. The main proposition in the charge was, upon this view of the law, correct; but for “ the general propositions” which followed it there would have been no error, I think, for which the conviction should be reversed, although one or more of the other parts of the charge might have been somewhat more explicit. I understand the court to have instructed the jury that if the act was unlawful; that is, if the license ought not to have been granted, under the statute, and the defendants intended to do the act, that is, to grant the license, they should be convicted. The charge was that they could not shield themselves because they did not suppose the act vras in violation of law, or because they mistook or were ignorant of the law, or because they supposed they were acting according to the statute. This was in effect placing the jury in the place of the commissioners, to review their decision, and if it was found out to have been warranted by the statute they were to convict; for that the commissioners signed the license intentionally and voluntarily was not disputed; and this was the only other fact necessary to a conviction. It is true this is in direct conflict with the other portions of the charge, but it is in the bill of exceptions, and is not a correct exposition of the law, and we are not at liberty to speculate whether it did or *319did not mislead the jury. In this part of the charge the principles of Rex v. Sainsbury and The People v. Brooks, where a positive law was violated and a positive duty neglected, and where the intent was a legal presumption, were applied to this case where the law gave a discretionary power, and the intent and motive was all important, and was the question of fact to be passed upon by the jury. As bearing upon this, the knowledge by the defendants of the place and all its surroundings, and its previous history, the communications from others and all the circumstances, were relevant and competent as evidence.
[Oswego General Term, July 14, 1863.For this error in the charge the conviction' must be reversed, and a venire de nova awarded to the sessions of Oneida county.
Allen, Muffin, Morgan and Bacon, Justices.]