In re Breslin

Van Brunt, P. J.:

In concurring with the opinion of Mr. Justice Beady, and in addition to what has been so well said by him upon this appeal, it may not be out of place to consider the necessary results which must follow the construction sought to be placed upon the excise laws by the respondent. It is true that the court is bound to expound the law according to the expressed intention of the legislature, no matter what consequences follow such construction, *216because any other course makes the court usurp legislative functions, which it should never attempt to exercise, as no such power has been committed to it by the organic law of the land. But in ascertaining what the intention of the legislature was in the enactment under consideration, the consequences arising from one interpretation which may be avoided by another may properly be considered.

By section 21 of the act of 1857 (chap. 628), it was provided as follows : “ No inn, tavern or hotel keeper or persons licensed to sell liquors, shall sell or give away any intoxicating liquors or wines on Sunday or upon any day on which a general or special election or town meeting shall be held * * * to any person whatever as a beverage.” By the act of 1873 (chap. 549, § 5) this section was amended by striking out the words or person licensed to sell liquors” and inserting instead thereof the words “any other person.” If, therefore, the words u as a beverage ” are to be interpreted to include the drinking of any kind of wine or liquor at any time or under any circumstances except where the same is drunk for medicinal or sacramental purposes, then no person either upon a Sunday or upon any election day, general or special, could supply at his own table to members of his own family a single glass of wine.

The language of the section is broad and explicit, and exempts no person from its inhibition. If the wine is to be drunk under any circumstances, the person giving it to another is liable to the penalty prescribed by the act. I can see no escape from this conclusion if the broad definition suggested is given to the words as a beverage.” It is clear that the legislature never intended to enact a law of the tyrannical character which the present law would be if such a construction is put upon it, and we necessarily must see whether some other reasonable interpretation may not be adopted which will better subserve the ends which the legislature desired to attain by its enactment. It is evident that by the section under consideration the legislature did not intend to absolutely prohibit the sale or giving away of intoxicating liquors or wines on Sundays or election days by the keepers of inns, taverns or hotels, or other persons, because they have not so enacted, but have limited the prohibition to the selling or giving away as a beverage. There is in this language an express recognition of a right to sell or give away 'ch will not be in contravention of the statute.

*217It may be urged that tbis language simply permitted a sale or giving away upon those days for mechanical, chemical or medicinal purposes and for sacramental use. In answer to this suggestion it may be sufficient to observe that articles for mechanical, chemical and sacramental purposes are not the subjects of Sunday trading and that wine or liquors for medicinal purposes are usually procured from other sources. It seems to be clear, therefore, that the legislature at the time of the enactment of the provision in question, had in view other circumstances in which it might be proper to sell or give away intoxicating liquors and wines on Sundays and election days. An examination into the origin of the word “ beverage ” shows clearly what was intended.

The word “ bever ” which is the root of the word “ beverage ” means “ a little repast between meals,” and the word beverage” came into use and was largely applied to mixed drinks, something made expressly for the occasion, although by many writers it has been used to apply to any pleasant drink. And it, therefore, seems to me that the legislature had this derivation plainly before it in the use of the word in the act in question. This interpretation gives to the whole act full force and effect and avoids the evidently erroneous conclusions which the broadest definition of the word would entail. A consideration of another provision of the law also sustains this interpretation. Section 5 of the act of 1870 (chap. 175) as amended in 1873 (chap. 549), contains a requirement that all places licensed shall be closed and kept closed at all times when selling is not authorized by law, and it is further provided that nothing therein contained shall be construed to prevent hotels from receiving and entertaining travelers at any time, subject to the restrictions contained in the act as amended. It is evident from the position of this exception in the section referred to, that the exception was only intended to apply to the command that all licensed places should be kept closed during certain hours, in order that the business of hotels, viz., the receiving and furnishing entertainment to travelers should in no way be interfered with by the provision that all licensed places should be kept closed. It is here clearly assumed that the right of hotels to entertain travelers existed under the other provisions of the act, and it was to prevent the operation upon *218hotels of the provision for closing that the exception was inserted and for this purpose only.

Mr. Justice Beady in his opinion has conclusively shown that the right to entertain travelers justifies the furnishing of food and wine to be drunk therewith, and if the legislature intended the word beverage ” to apply to all wines furnished to be drunk at any time, the right to entertain travelers would not have existed independent of the exception referred to, which right, as has been shown, is clearly recognized by the exception. It is true that in the act of 1855 (chap. 231) the word beverage may have been construed to include the use of wines and liquors under any circumstances except for mechanical, chemical, medicinal or sacramental purposes, but the act of 1855 was passed for a very different purpose and for a very different object from that which actuated the legislature in the enactment of the act of 1857 and the amendments thereto. The word beverage may have been used in the act of 1855 in a broader sense than may have been entirely correct, and yet in the act of 1857 it may have been used, as it undoubtedly was, in its true and more restricted meaning. It seems to be evident, therefore, that there was no intention on the part of the legislature to impose any greater restraint than that which is so clearly indicated in Mr. Justice Beady’s opinion.