It is conceded that the sale of March 23, 1868, amounting to $530.28, was illegal, because the plaintiffs had not at that time a license to sell spirituous liquors. The question, then, how the plaintiffs applied the payments that were made to them by the defendants from time to time is not important, because they were bound by law to apply the money received by them first in payment of the valid items, irrespective of their order in their account. Any balance then remaining might be applied in payment for goods illegally sold. This was clearly settled in Hall v. Clement,41 N.H. 166, and is supported by unanimous authorities there cited; — see, also, Kidder v. Norris, 18 N.H. 532.
Applying the payments made by the defendants to the plaintiffs in this case in accordance with this rule, the sales of August 11 and December 7 must be regarded as paid, and the balance of payments, amounting to $479.98, call be applied on the bill of March 23, leaving a balance of $50.30 due upon that bill; and, as the sale was prohibited by law, the plaintiffs cannot recover the same.
I also concur with the chief justice in the opinion that selectmen cannot act as agents of their town for the purchase of spirituous liquors, and cannot bind their town for liquors so purchased by them.
FOSTER, C. J., C. C. At the time of the first payment in discharge pro tanto of the defendants' indebtedness, there was no special application of it by the plaintiffs, and they cannot now make an application *Page 101 such as shall suit their case as it now stands, and in opposition to the application which the law itself makes. They cannot apply the payment to an item of the account not legally payable. The remainder of the plaintiffs' account is paid and discharged by the money credited, and therefore they cannot recover anything in this action.
The traffic in spirituous liquors is condemned by the policy which has caused the enactment of a statute for its suppression in this state; and as its sale is restricted by stringent limitations, so is its purchase, so far as a purchase of such a commodity may in any sense he regarded as the subject of municipal regulation.
An individual may buy liquor, and not thereby commit an offence against the law; but a town is not thus protected. The law does not undertake to regulate the conduct of an individual, except so far as it strives to protect him and his family against the consequences of his intemperance, by treating the excessive indulgence of his intemperate habits as a crime, or at least an offence against the good order of society; but, in the case of a town the law has undertaken to regulate the traffic, — that is, the purchase, as well as the sale, of spirituous liquor. Gen. Stats., ch. 99, sec. 6. It must be sold with great caution. In theory, it is to be sold only for such purposes as contemplate the use of a pure article; and it should only be purchased for sale by an agent such as the town may deem discreet and trustworthy. Therefore it is provided by the law — Gen. Stats., ch. 99, sec. 6 — that no innkeeper, or keeper of a place of public entertainment, shall be a town agent. And although the selectmen may be as judicious as any person they might appoint, still, as they are constituted the appointing power, it would seem quite ridiculous to say they might appoint themselves to the office of town agent.
The proposition needs only to be stated to exhibit its absurdity.
Selectmen are entrusted with the power of controlling, for the interests of the inhabitants of a town, the traffic in spirituous liquors, and if they themselves undertake this traffic, to whom shall they be responsible? The object of the statute was to create all agent who should be under control, and not irresponsible.
I agree with my brethren that there must be
Judgment for the defendants.