Commonwealth v. Lafontaine

69 Mass. 479

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1855
• Status: Published

Opinion

Dewey, J.

The defendant insists that a negation of “ authority to sell intoxicating liquors ” extends no further than to cases of persons not having an appointment to sell as agents of the town, or in some form authorized by the acts of an appointing power, or some direct authority conferred on them personally. Bui, in the opinion of the court, this is too narrow a construction of the allegation. Authority to sell such liquors may as well be derived directly from the general law, operating upon all citizens under the same circumstances, as from an appointment or license, by an authorized tribunal, to the individual. Authority to do a thing is having the legal power or right so to act. The first section of the statute upon which this complaint is founded, is certainly in accordance with the construction that “authority” to sell embraces all the various forms under which a legal right to sell may exist. It declares it to be unlawful and criminal for any person to sell any intoxicating liquor, “ unless he is duly authorized so to do, as is hereinafter provided.” The term “ duly authorized,” as here used, clearly embraces all the various cases of legal sales under the provisions of the act, under whatever form they may be authorized—whether by appointment as town agents; or under the provisions authorizing the manufacture and sale of intoxicating liquors under the approval of the county commissioners, upon a special application to them for that purpose ; or lawful sales made without any special authority or appointment therefor, by importers of liquors of foreign production, or by druggists to other druggists, apothecaries and physicians, for medicinal purposes. Exceptions overruled

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A similar decision was made in Middlesex, October term 1855, in the case of Commonwealth v. Babney McShebby, in which the indictment alleged that the defendant, at Watertown on the 20th of May 1855, and at said Water-town from that day to the day of finding this indictment, “ without then and tii ere having any license, appointment or authority therefor, first duly had and obtained according to law, was then and there a common seller of spirituous and intoxicating liquors, against the peace of said commonwealth, and the form of the statute in such case made and provided.”

J. G. Abbott, for the defendant.

J. II. Clifford, (Attorney General,) for the Commonwealth.