Commonwealth v. Fredericks

119 Mass. 199, 1875 Mass. LEXIS 116

• Court: Massachusetts Supreme Judicial Court
• Decided: November 27, 1875
• Status: Published

Opinion

Gray, C. J.

There is no plausible ground for sustaining any of the exceptions taken and argued in this case.

1. The complaint distinctly and sufficiently negatives all authority of the defendant to sell intoxicating liquors, whether derived from the St. of 1875, c. 99, or from any other source. Commonwealth v. Lafontaine, 3 Gray, 479. Commonwealth v. Gilland, 9 Gray, 3. Commonwealth v. Dunn, 14 Gray, 401. Commonwealth v. Costello, 118 Mass. 454.

2. The alleged misnomer of the defendant, not being apparent on the record, cannot be availed of by motion to dismiss, but only by plea in abatement. Commonwealth v. Dedham, 16 Mass. 141 . Turns v. Commonwealth, 6 Met. 224. Crosby v. Harrison, 116 Mass. 114.

3. No errors in the copies transmitted from the Municipal Court are pointed out in the motions or brief of the defendant, or are apparent upon the papers before us.

4. Any irregularities in the proceedings in the Municipal Court were rendered immaterial by the appeal which vacated the judgment of that court. Commonwealth v. Holmes, ante, 195.

5. The St. of 1875, c. 99, authorizing the granting of licenses by the municipal authorities to sell spirituous and intoxicating liquors, and requiring the payment of a fee or excise therefor, is constitutional and valid. Commonwealth v. Blackington, 24 Pick. 352. Commonwealth v. Bennett, 108 Mass. 27. Commonwealth v. Martin, 108 Mass. 29, note. Commonwealth v. Dean, 110 Mass. 357.

6. We perceive no ambiguity in the provisions of the statute, in any of the particulars referred to by counsel. The provision of § 6, that each license shall be subject to certain specified conditions, as well as the provisions of §§ 12, 13, for forfeiting the license upon breach of those conditions, clearly show that the license is subject to the conditions therein expressed. Section 13 prescribes the punishment for any violation of the statute. The provision of § 6, that certain classes of licenses “ shall be subject to the further condition that no spirituous or intoxicating liquors, except those the sale of which is allowed by the license, shall be kept on the premises described in the license,” signifies that only liquors of that kind, the sale of which is allowed by the license, shall be kept on the premises. The condition that “ the licensee shall not keep a public bar,” explains itself to all who read it. The further condition, that the licensee “ shall hold a license as an innholder or common victualler ” is shown by the very next sentence to mean such a license from the mayor and aldermen or selectmen. Exceptions overruled.