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City Document, — iVo. 9.
PROCEEDINGS
MAYOR AND ALDERMEN
RELATIVE TO THE
UNLAWFUL SALP:
INTOXICATING DRINKS.
ROXBURY:
THOMAS PRINCE, CITY PRINTER,
1853.
CITY OF ROXBURY.
In Board of Aldermen, Sept. 26, 1853.
Ordered, That the Act concerning the Manufacture and Sale of
Spirituous or Intoxicating Liquors, passed May 22, 1852, together with
the Legal Opinion of Francis Hilliard, Esq., relative to prosecutions
made under said Act, and such other papers touching the same subject as
may be deemed necessary, be printed for the use of the Board of Alder-
men.
. JOSEPH W. TUCKER, City Clerk.
PROCEEDINGS,
In Board of Aldermen, Sept. 19, 1853.
The following petition having heen presented and re*
ferred to the Board of Aldermen, and notice having been
given that the petitioners would be heard this evening,
said petition, signed by Francis Hilliard and 240 others,
was read, viz. : —
To the Mayor a7id Aldermen of Roxhury :
The memorial of the undersigned, citizens of Roxbury,
respectfully represents —
That their attention has been recently and painfully
called, by scenes daily witnessed, and more especially by
the occurrences and exhibitions of our late National Anni-
versary, the Fourth of July, to the large and increased
amount of drunkenness in this city. It is unnecessary for
us to remind you, that a statute now exists in this Com-
monwealth, making the sale of intoxicating liquors a highly
penal offence — a more severe and rigid law than was ever
before enacted upon this subject. We are not unmindful
of the grave doubts entertained by many respectable men
as to the justice, policy, or practicability of some of the
provisions of this statute. But, with regard to that partic-
ular aspect of the subject, to which we now invite your
attention, we apprehend that there is no such difference of
opinion. The appalling amount of drunkenness now prev-
alent among us, and so conspicuously exhibited on the
occasion referred to, is in a great measure brought about
by the multitude of drinking-houses and tippling-shops,
which, in open defiance of law, are still suffered to infest
the city. The number of these establishments known to
be in operation within the limits of the City of Roxbury,
is fifty-one, and a rigid scrutiny would undoubtedly bring
to light many more. With respect to this particular class
of places for the sale of intoxicating liquors, we repeat the
remark that public sentiment is not seriously divided, as it
undoubtedly is with reference to some provisions of the
existing statute. On the contrary, we are fully persuaded
that an overwhelming majority of this people consider
drinking-houses and tippling-shops as the most fruitful
sources of idleness and pauperism, vice and crime, disease
and death ; and would warmly approve any lawful action
on the part of the public authorities to break them up.
To your Honorable Board we address ourselves for the
furtherance of this great object, believing that every con-
sideration of public policy demands an energetic enforce-
ment of the law at your hands, but leaving, with confi-
dence, the precise mode and course of action to your expe-
rience and wisdom. In you our Municipal Charter vests
the executive power of the city and the administration of
the police. To officers of your appointment, one of your
own by-laws entrusts the prosecution of all offences against
the laws of the State and the ordinances of the city. You
were the tribunal to grant licenses under the old law, and
to establish a city agency under the present. This partic-
ular subject therefore — the unlawful sale of intoxicating
drinks — seems to us, whether tested by your general au-
thority or more special powers, to fall most appropriately
under your jurisdiction. Permit us to hope, that your
Honorable Board will acknowledge, by prompt and efficient
action, both their right and their duty to interfere in behalf
of a cause so urgent and so sacred..
To the Mayor and Aldermen of the City of Roxhury :
In aid of a Petition now before your Board, signed by
F. Hilliard and others —
We would respectfully represent that we agree in senti-
ment and facts therein stated, and would further add, that
it is our conviction and belief that at no time in our expe-
rience have we known so large a number of places where
intoxicating liquors are sold. We know it to be a practice
with many private houses to keep intoxicating liquors for
sale in open defiance of all law.
Should the question be asked by any of your Board why
we do not enter complaint, we answer that we should be
intimidated for fear of violence to either person or property.
Whereupon, Francis Milliard, James Ritchie, Rev. Wm.
H. Ryder, Laban S. Beecher, Moses Day, and several oth-
ers appeared and addressed the Mayor and Aldermen in
behalf of the petitioners, setting forth the enormity of the
evil, and requesting that all means in the power of the city
might be used for the purpose of suppressing the sale of
intoxicating drinks, and more particularly to prevent the
traffic in tippling-shops and private houses.
After the petitioners had fully expressed their views, the
following Order was offered by Alderman Sleeper, and
adopted : —
Ordered, That His Honor the Mayor be authorized to
consult and advise with legal counsel in regard to the power
of the City Government to prosecute the occupants ^f tip-
pling-houses, and the most proper and efficient measures
which it would be expedient to adopt with a view to close
such places, and thus check the evils of intemperance.
In Board of Aldermen, Sept. 26, 1853,
The Mayor, upon the Order submitted at the last meet-
ing, relative to taking legal advice concerning prosecutions
under the law respecting the sale of intoxicating liquors,
submitted the legal Opinion of Francis Hilliard, Esq.,
which was read.
A true copy :
Attest, JOSEPH W. TUCKER, City Clet^Ic
OPINION.
To the Mayor and Aldermen of the City of Roxbury :
I have received, through the City Clerk, a copy of the
following order, with a request from his Honor the
Mayor for my professional opinion and counsel upon the
points therein involved : —
" Oftiered, that his Honor the Mayor be authorized to
consult and advise with legal counsel, in regard to the
power of the City Government to prosecute the occupants
of tippling-houses, and the most proper and efficient meas-
ures which it would be expedient to adopt, with a view to
close such places, and thus check the evils of intemper-
ance."
1. That the City Government has " power to prosecute
the occupants of tippling-houses," I entertain no doubt.
Nobody disputes, that tippling-houses are unlawful ; that
every keeper of one is in the constant violation of the law
of the Commonwealth ; and moreover that every single act
of selling intoxicating liquor is of itself a criminal otfence.
If this be so, then, unless the City Government has power
to prosecute these crimes, it has less power than any sin-
gle individual ; for every citizen of the Commonwealth is
allowed the right of complaining before a magistrate or be-
fore the grand jury of any offence against the criminal law.
The Mayor and Aldermen, of course, are not expected,
either as a body or as individuals, to appear personally in
the capacity of informers or complainants against criminal
offenders. But they are represented by a police, of their
own appointment, and subject to their absolute control ;
through whom they can inquire and ascertain, what offences
are committed, and whom they may instruct to "prosecute
the occupants of tippling-houses," in common with all
other offenders against the ordinances of the City or the
laws of the State.
Tippling-houses are made unlawful, by the well-known
statute of 1853, ch. 322, familiarly known as the liquor law.
This act has been much discussed and severely criticised,
but never adjudged unconstitutional by the Supreme Court ;
and every presumption is to be made in favor of a statute,
until thus pronounced void. Still, under the terms of the
inquiry proposed to me, if I were of opinion that the law is
unconstitutional, though never so adjudged, I should be
bound to answer, that "the City Government" has not
" the power to prosecute the occupants of tippling-houses ;"
because neither a government nor an individual has, in the
true sense of the word, power to enforce an unconstitu-
tional law.
The modes, in which the occupants of tippling-houses
may be prosecuted, are three ; to each of which I will
briefly direct your attention.
The 7th section of the statute provides, that every per-
son who sells intoxicating liquor shall be punished by a
fine of ten dollars, and required to give a bond, in the pen-
alty of not less than a thousand dollars, that he will not
repeat the offence within one year ; for the second offence,
that the fine shall be twenty dollars, with a similar bond ;
and for the third and every subsequent offence, twenty
dollars, and imprisonment not less than three months.
The 12th section of the statute provides, that every
common seller of intoxicating liquor shall be punished, for
the first offence by a fine of one hundred dollars, or im-r
prisonment for sixty days, and required to give a bond, in
the sum of not less than two thousand dollars, against a
repetition of the offence within one year ; for the second
8
offence, that the fine shall be two hundred dollars, or im-
prisonment for four months, with a similar bond ; and for
the third and every subsequent offence, that the fine shall
be two hundred dollars, with imprisonment for four months.
The 14th section of the statute, — ^being that portion of
it about which the public mind seems to have been chiefly-
disturbed and divided, — provides, that, upon the complaint
of three persons, voters in the town or city where the com-
plaint is made, alleging their belief that intoxicating liquors
are kept for sale in some designated place ; a search war-
rant may be issued, any liquors found in such place seized,
the owner or keeper of them summoned to answer, and, if
he fail to appear, or to prove that they are contained in the
original packages in which they were imported, or other-
wise lawfully kept, the liquors declared forfeited and de-
stroyed.
These, therefore, are the three modes, in which '' the
occupants of tippling-houses " may be prosecuted. The
first, as has been seen, is for single acts of selling. This,
by the 8th section, is in the form of an action of debt or a
complaint before a Justice of the Peace or Police Court.
If an action is brought, it is to be in the name of the city
or town where the offence was committed. Of course, the
City Government not only has power, but the exclusive
power to institute this form of process. If, on the other
hand, a complaint is resorted to, as has been already stated,
any member of your Honorable Board, or any other citizen,
may be the complainant.
The second mode of prosecution is for being a common
seller. This, by the 12th section, is "by indictment or by
action of debt in the name of the city," <fec. With regard
to an action, the remark already made may be repeated,
that the city alone has power to institute it. If a criminal
prosecution is resorted to, although "indictment" only is
expressly mentioned, I have no doubt that proceedings may
be commenced before a Justice of the Peace ; whose duty
9
it will be to hind over the defendant, for the purpose of re-
sponding to any "indictment" Avhich may be found in a
higher Court. A subsequent part of the same section pro-
vides, that "the names of all the parties implicated — may
be included in the same complaint and warrant and indict-
ment." So also, the former law upon the same subject —
Revised Statutes, ch. 47, sect. 26 — provided, that " all the
fines imposed by this chapter may be recovered by indict-
ment; — and when the fine does not exceed twenty dollars,
the oftence may be prosecuted before a Justice of the
Peace." Yet the uniform practice has been, and I am not
aware that the correctness of it was ever questioned, to
institute preliminary proceedings before a magistrate, where
the penalty exceeds twenty dollars. The exercise of this
jurisdiction may probably be justified by another provision
of the same code — Revised Statutes, ch. 85, sect. 26 — ^that
"the said justices shall cause to be arrested all persons
found within their counties, charged with any offences.
They shall also examine into all — -misdemeanors, and com-
mit or bind over, for trial, all persons who appear to be
guilty thereof." So also, by chapter 135, sections 1 and
2, "for the apprehension of persons charged with offences
— ^Justices of the Peace are authorized to issue process.
Upon complaint that a crinii7ial offence has been committed,
he shall examine on oath the complainant, and shall issue
a warrant." By sect. 17, " if it shall appear that an offence
has been committed, and that there is probable cause to
believe the prisoner guilty," — he shall be bailed, or "com-
mitted to prison /o;- trial.''''
I have dwelt thus particularly upon the form of prosecu-
tion for the offence of com,mon selling, not because I have
heard any doubt expressed upon the point, but for other
reasons which strike me with much force. The law in
question is undergoing a more rigid analysis and criticism
than any other on the statute-book. Wherever a flaw can
be detected, or a construction given to words, conformable
2
10
to their literal sense, however contrary to the general pur-
pose of the act, excited as the public mind is upon the
subject, every objection will be raised which the keenest
professional acuteness can suggest ; and this, perhaps,
among others, of the want of power in a Justice of the
Peace to entertain complaints against common sellers.
Moreover, the power of prosecuting under the 12th sec-
tion seems to me the most important conferred by the
statute ; because comfnon selling- is the real crime which it
is chiefly designed to suppress, and the penalties are severe
enough to strike a wholesome terror, where those imposed
upon single acts of sale might be treated with comparative
contempt. And finally, should your Honorable Board de-
cide in favor of " the power of the City Government to
prosecute the occupants of tippling-houses," it is of the
highest importance for them to understand, that they may
proceed immediately before a magistrate, instead of waiting
three months for the next session of the grand jury.
The third mode of prosecution, is under the 14th section,
the general provisions of which have been already stated.
It would be useless to deny, that the proceedings herein au-
thorized are a novelty in our legislation, and surrounded
with formidable difficulties. No more responsible duty
will devolve upon the Legislature soon to be elected, than
that of revising the whole liquor law, and more especially
this portion of it, with the view of adapting it more per-
fectly to the public opinion and necessities, and the gen-
eral spirit of our constitution and jurisprudence.
If the inquiry proposed to me concerned " the power of
the City Government to prosecute the occupants," not of
"tippling-houses," but of hotels or grocery stores, which
happened to have wine or ale in their cellars ; by procuring
search-warrants for the seizure of these articles, and then
proceeding under the forms of law to destroy them, with-
out compensation ; I might, perhaps, upon general princi-
ples, and more especially upon the authority of the decision
11
recently pronounced by an eminent judge in a neighboring
State, declare the "power" a doubtful one, not, certainly, to
be lightly exercised. But. when intoxicating liquors have
found their way into a tippling-house, — meaning by this
term a house where such liquors are exposed or in some
way advertised for sale, to be consumed on the premises ; —
then, in consideration of |he direct encouragement which
they hold out to idleness, vice and crime, of their immediate
tendency to corrupt the public morals, endanger the public
peace, and increase the public burdens ; there is strong rea-
son for contending, that they become, like cards or dice,
transferred from a fancy goods store to a gaming-house, or
like obscene prints, infected cargoes, or counterfeit bank
bills, wherever found, neither more nor less than public
nuisances, inconsistent with the safety of the community,
and rightly doomed to destruction.
I have alluded to a recent judicial decision upon this
subject, which has attracted much attention, and strongly
tended to bring the statute in question into doubt and con-
tempt. I refer to the case of Greene v. Briggs in the
Circuit Court of the United States for the Rhode Island
District, in which Judge Curtis, a distinguished jurist of our
own state, held the Rhode Island liquor law, similar in its
general structure to the Massachusetts act, to be inconsist-
ent with some provisions of the state constitution, and
therefore void. This decision, however, when carefully
examined, by no means justifies all the inferences which
have been drawn from it, being chiefly predicated upon
certain provisions in the Rhode Island law, not to be found
in our own. Such are the provisions, that upon a com-
plaint, which does not name the party intended to be
charged, if the owner of the liquor seized appear in de-
fence, appeal from a conviction by the magistrate, and be
convicted in the court above, he shall be adjudged a com^
mon seller, although no such crime is alleged in the com-
plaint ; and moreover pay a penalty Jive times greater than
12
that awarded against him by the magistrate. Such also is
the provision, that a party, in order to appeal, shall give
security to pay all Ji7ies and costs that may be awarded
against him. The Massachusetts statute has very wisely
avoided these obvious invasions of the constitutional right
to a trial by jury. So also, in the Rhode Island case, the
complaint named no person, as owner or keeper of the
liquors ; whereas the forms used in Massachusetts uniform-
ly, so far as I know, name the party intended to be charged.
Moreover, in that case, the liquors were not seized in a
drinking house or tippling shop, but apparently in a large
ware-house, where they were kept on storage ; and the
learned judge makes some remarks as to their being prop-
erty, and so entitled to the protection of the law, which I
think he would hardly have applied to the rum kept for
sale in a tippling-house.
In Massachusetts, if I am rightly informed, no adjudica-
tion has been made, certainly not by the Supreme Court,
against the constitutionality of the liquor law ; although
numberless complaints have been quashed for technical
informality. Some of its provisions may hereafter be pro-
nounced unconstitutional ; but it is to be borne in mind,
that a law may conflict with the constitution, in some
points, comparatively few and slight, while its general re-
quirements are beyond any suspicion of such an objection.
I trust I have succeeded in showing, that this remark
applies to the statute in question ; and that some of its
most important sections are susceptible of enforcement,
without any possible risk of violating the paramount law
of the state.
2. I am inquired of, as to "the most proper and eflicient
measures, which it would be expedient to adopt, with a
view to close such places, and thus check the evils of
intemperance."
Upon this point, the first remark I have to make is, that
neither the power nor duty of the City Government in
13
reference to the suppression of tippling'houses is to be
sought for in the liquor law itself. The 8th section does
indeed provide, that "it shall be the duty of the mayor
and aldermen of any city — to commence an action in
behalf of said city — against any person guilty of a viola-
tion of any of the provisions of this act, on being informed
of the same, and being furnished with reasonable proof of
the fact." But it would be singular, indeed, if a statute,
more stringent and severe than was ever before enacted
upon the subject in this Commonwealth, were found to
contain a clause, which narrows down and fritters away
the power and duty of the public authorities in the sup-
pression and punishment of crime to the finest point of a
mere nominal jurisdiction. Because the act, out of abun-
dant caution, and in token of its urgent purpose to sup-
press the pernicious traffic by all possible instrumentalities,
passes for a moment out of its straight track, to prescribe
what, under certain circumstances, the mayor and alder-
men shall do ; it by no means follows, that it has the
remotest intention to impair or abridge what, independent-
ly of this clause, the mayor and aldermen may do. If
thus construed, this clause would cut off the mayor and
aldermen, even when informed a7id furnished with proof,
from all modes of prosecution but one, and that the most
burdensome and least effective of all, aTi action in behalf
of the city. A tippling-house may be openly set up at
each corner of every street, lane, alley and court in
Roxbury ; and yet the mayor and aldermen can neither
threaten beforehand, nor institute, when their threats are
disregarded and defied, any more searching and formidable
process, than "an action of debt in the name of the city."
The complaint for single acts of selling, the indictment for
common selling, the prosecution by search-warrant and
seizure, are all specifically and articulately provided by
this same act ; but they are weapons which other hands
must wield ; the mayor and aldermen — charged though
14
they are with the public peace, the public health, and the
public morals, which tippling-houses do more than any-
thing else to violate, impair and corrupt — may bring " an
action of debt in the name of the city," but here their
power stops.
Another important suggestion upon this topic is, what
sort of information and reasonable proof the statute con-
templates, as the foundation for the interference of the
municipal authorities. I apprehend it is such as they may
obtain by the vigilant use of their own senses, and through
the ministerial and executive officers whom the law places
under their control ; multiplied to just such a number, sta-
tioned at just such points, and above all furnished with
just such instructions and orders, as the enforcement of a
wholesome law, and the prevention or punishment of an
atrocious crime, may justify and demand.
Having thus attempted to present my views of the ex-
isting law for prosecuting "the occupants of tippling-
houses," and of the power of the City Government to en-
force it; in compliance with the order submitted to me,
though with much diffidence, I venture to suggest, what
specific measures seem to me most suitable and most likely
to be efiectual, " with a view to close such places, and
thus check the evils of intemperance."
I entertain a strong conviction, that a proclamation by
his Honor the Mayor, setting forth the deliberate deter-
mination of the City Government to enforce the law, would
of itself have the effect to suppress many of these establish-
ments. Let this be the first step. Then, after reasonable
delay, let distinct and peremptory instructions be given to
the police officers, that they use their utmost exertions to
bring oflfenders to justice. If necessary to accomplish the
object, the number and pay of these officers ought to be
increased, and all possible safeguards provided, for their
protection against personal injury, when visiting the places
16
where the unlawful traffic is carried on, and procuring the
evidence necessary to conviction.
With regard to the form of prosecution, I would recom-
mend proceeding under the 8th section hy complaint for
single acts of selling, or under the 12th for common selling,
rather than under the 14th section, by search-warrant and
seizure. This last has no particular advantage over the
second, except as a means of furnishing evidence ; for I
suppose the penalty for being a common seller much ex-
ceeds the value of the liquor, which would ordinarily be
found at any one time in any tippling-house in Roxbury,
even with the addition of the twenty dollars fine ; and it
is hardly expedient to adopt a novel and somewhat obnox-
ious course of proceeding, when the same end can be
effected by a process which long experience has sanctioned.
If in any particular cases the requisite proofs can be ob-
tained in no other way, the officers should be instructed to
procure the warrant of seizure, and fully indemnified for so
doing. In prosecutions under the 8th section, the penal-
ties being given to the city, it is so far doubtful whether a
magistrate residing in this city can legally act, that it
would be wiser to proceed before some one who resides
elsewhere. The common impression, that the same ob-
jection applies to prosecutions under the 12th and 14th
sections, does not seem to me well-founded. I find no
provision that the penalties for these offences shall go to
the city, and as a matter of course they go to the county ;
but no magistrate of the county is thereby precluded from
acting. There is, however, another provision of the act —
sect. 9 — that "the forfeitures of all bonds and recogni-
zances given in pursuance of this act shall go to the town
or city where the offence was committed ;" which throws
a similar cloud over the jurisdiction of a magistrate re-
siding in the city. I would therefore recommend, that
some respectable Justice of the Peace from a neighboring
town be formally requested by your Honorable Board, to
16
take cognizance of any prosecutions which may be insti-
tuted under your authority or direction.
FRANCIS HILLIARD.
Roxbury, Sept. 26, 1853.
n
CHAPTER 322.
AN ACT CONCERNING THE MANUFACTURE AND SALE OF SPIRITU-
OUS OR INTOXICATING LIQUORS.
Be it enacted hy the Senate and House of Representatives, in
General Court assembled, and hy the authority of the same, as fol-
lows :
Sect. 1. No person shall be allowed at any time to manu-
facture for sale, or to sell by himself, his clerk, servant, or agent,
directly or indirectly, any spirituous or intoxicating liquors, or any
mixed liquors, a part of which is spirituous or intoxicating, except
as is hereinafter provided.
Sect. 2. The selectmen of any town, and the mayor and alder-
men of any city, on the first Monday of May annually, or as soon
thereafter as may be convenient, may appoint some suitable per-
son or persons as agent or agents of such city or town, to sell at
some central or convenient place or places, within said city or
town, spirits, wines, or other intoxicating liquors, to be used for
medicinal, chemical, and mechanical purposes, and no other; and
such agent or agents shall receive such fixed and definite salary,
not dependent in amount upon the sales, for his or their services,
as the board appointing him or them shall prescribe, and shall, in
the sale of such liquors, conform to such rules and regulations as
the selectmen and mayor and aldermen aforesaid shall prescribe
for that purpose ; and every such agent shall hold his situation for
one year from the time of his appointment, unless sooner removed
by the board which appointed him, as he may be at any time, at
the pleasure of said board.
Sect. 3. Every agent, appointed as aforesaid, shall receive a
certificate from the mayor and aldermen, or selectmen, by whom
he has been appointed, authorizing him, as agent of such city or
town, to sell intoxicating liquors for medicinal, chemical, and mer
chanical purposes only, at such place within their respective town
or city as by them shall be deemed suitable, which place shall be
designated with precision in said certificate ; but such certificate
shall not be delivered to the person so appointed until he shall
have executed and delivered to said board a bond, with two good
and sufficient sureties, in the sum of six hundred dollars, in sub-
stance as follows :
Know all men that we — ■ , as principal, and and
, as sureties, are holden and stand firmly bound to the
inhabitants of the town of , (or city, as the case may be,)
in the sum of six hundred dollars, to be paid unto them, their sqc^
cessors or assigns, to which payment we bind ourselves, our heirs
.3
18
and executors, or administrators, firmly by these presents. Scaled
with our seals and dated this day of , A. D. .
The condition of this oblis^ation is such, that wheieas the above
bounden ■— has been duly appointed an agent for the town of
, to sell within, for, and on account of said town or city,
intoxicating liquors for medicinal, chemical, and mechanical pur-
poses, and no other, until the day of , A. D. ,
unless sooner removed from said agency. Now, if the said
shall, in all respects, conform to the provisions of law relating to
the business for which he is appointed, and to such rules and reg-
ulations as now are, or shall, from time to time, be established by
the board making the appointment, then this obligation to be void ;
otherwise to remain in full force. And the selectmen, and mayor
and aldermen, shall keep a record of the names and certificates,
in full, of all persons by them appointed, as aforesaid, which
record shall be open to public inspection at all reasonable times,
and they shall, as soon after the appointment of said agents as
practicable, fui'nish a list of said names to the county commis-
sioners of the several counties, and mayor and aldermen of the
city of Boston.
Sect. 4. The commissioners of the several counties, and the
mayor and aldermen of the city of Boston, on the first Monday of
May annually, or as soon thereafter as practicable, may authorize
such persons as shall apply to them, in writing, to manufacture
spirituous or intoxicating liquors, at a suitable place or places
within their respective county or city, and sell the same in quan-
tities not less than thirty gallons, to be exported out of the Com-
monwealth, and for mechanical and chemical purposes, or in any
quantity to duly authorized agents of the towns and cities ; and
such authority, given as aforesaid, shall continue for the term of
one year from the date thereof, unless sooner revoked for cause,
or annulled as hereinafter provided and specified.
Sect. 5. Every person authorized, as aforesaid, shall receive
a certificate from the county commissioners, or the mayor and
aldermen by whom he is authorized, giving him authority to man-
ufacture and sell spirituous and intoxicating liquors, as aforesaid,
at such place, within their respective county or city, as by them
shall be deemed suitable, which place shall be designated with
precision in such certificate ; but such certificate shall not be de-
livered to such person until he shall have executed and delivered
to said board a bond, with two good and sufliicient sureties, in the
sum of six thousand dollars, in substance as follows :
Know all men that we, , as principal, and and
. , as sureties, are holden and stand firmly bound to the in-
habitants of the county of (or city, as the case may be,)
in the sum of six thousand dollars to be paid unto them, their suc-
cessors, or assigns, to which payment we bind ourselves, our heirs,
executors, and administrators, jointly and seyerally, firmly by
X9
these presents ; sealed with our seals, and dated this day
of , A. D. .
The condition of this obligation is such, that whereas the above
bounden has been duly authorized to manufacture spiritu-
ous or intoxicating liquors at , in the town or city of ,
and county of , and sell the same in quantities not less
than thirty gallons to be exported out of the Commonwealth, or for
mechanical and chemical purposes, or in any quantity, to duly
authorized agents of towns and cities, as by law provided, until
the day of , A. D. , unless such authority
be sooner revoked or annulled.
Now, if the said shall, in all respects, conform to the
provisions of law relating to the business which he is authorized,
as above, to pursue, and shall violate no law of the Common-
wealth touching the manufacture and sale of spirituous or intoxi-
cating liquors, then this obligation to be void, otherwise to remain
in full force; and if any person so authorized and bound, shall
commit any breach of the conditions of his bond, his certificate
shall thereupon be null and void, and he shall not thereafter be
authorized or permitted to manufacture or sell spirituous or intoxi-
cating liquors.
Sect. 6 The commissioners of the several counties, and the
mayor and aldermen of the city of Boston, shall keep a record of
the names, residences, and certificates, in full, of all persons by
them authorized to manufacture and sell, as hereinbefore provided,
and also the names and residences of all agents of towns and
cities, furnished them by the selectmen and mayor and aldermen,
as provided in section third, which record shall be open to public
inspection at all reasonable times ; and they shall furnish a list of
said names, with their residences, to all persons authorized by
them to manufacture and sell spirituous or intoxicating liquors,
and to all agents of towns and cities whose names have been fur-
nished them as aforesaid, or who are in any way known to them.
Sect. 7. If any person by himself, his clerk, servant, or agent,
shall at any time sell any spirituous or intoxicating liquor, or any
mixed liquor, part of which is spirituous or intoxicating, in viola-
tion of the provisions of this act, he shall forfeit and pay, on the
first conviction, ten dollars and the cost of prosecution, and shall
stand committed until the same be paid, and shall be required to
give bonds in a sum of not less than one thousand dollars that he
will not, within one year from such conviction, violate any law of
the Commonwealth concerning the sale of spirituous or intoxicat-
ing liquors : on the second conviction he shall pay twenty dollars
and the costs of prosecution, and shall stand committed until the
same be paid ; and if it be more than one year from the first con-
viction, he shall be required to give like bonds as on said first
conviction : on the third and every subsequent conviction, he shall
pay twenty dollars and the costs of prosecution, and shall be im-
20
prisoned in the common jail or house of correction not less than
three nor more than six months : and in default of payment of
fines and costs prescribed in this section for the first and second
convictions, the convict shall not be entitled to the benefit of any
of the acts of the Commonwealth for the relief of poor prisoners,
committed on execution for debt, or concerning poor debtors, or
relating to the discharge of poor debtors committed on execution
for debt, until he shall have been imprisoned two months ; and in
default of payment of fines and costs provided for the third and
every subsequent conviction, he shall not be entitled" to the benefit
of said acts concerning poor debtors, or for the relief of poor
prisoners, or relating to the discharge of poor debtors, as cited
above, until he shall have been imprisoned in the jail or house of
correction three months. And if any clerk, servant, or agent, or
any other person in the employment or on the pi'emises of another,
shall violate the provisions of this section, he shall be held equally
guilty with the principal, and on conviction shall suffer the same
penalty. And where any act in violation of the provisions of this
section has been committed by any clerk, servant or agent, or
other person as aforesaid, upon the premises of another, the
names of all the parties implicated, either as principal or as clerk,
or other person, may be included in the same complaint, warrant,
or indictment, and all the parties may be tried at the same time,
and judgment shall be rendered accordingly, and each person so
implicated and convicted shall incur the fines and forfeitures pro-
vided for the offence. And two or more acts of violation of the
provisions of this section may be alleged in the same complaint or
indictment, and be tried at the same time, and conviction thereon,
or on any of them, shall operate upon the defendants in the same
manner as if the actions had been upon separate complaints, and
the convictions had at separate trials. ,
Sect, 8. Any forfeiture or penalty arising under the above
section may be re'^overed in an action of debt, brought in the
name of the city or town where the offence was committed, or by
complaint before any justice of the peace or judge of any Police
Court in the county where the offence was committed, and the for-
feiture so recovered shall go to the town or city where the convict-
ed party resides ; and the prosecutor, or complainant, may be ad-
mitted as a witness in the trial, and in all actions of debt arising
under this section, the fines and forfeitures suffered by the de-
fendant shall be the same as if the action had been by complaint.
And it shall the duty of the mayor and aldermen of any city, and
the selectmen, or any one of them, of any town, to commence an
action in behalf of said city or town, against any person guilty of
a violation of any of the provisions of this act, on being informed
of the same, and being furnished with reasonable proof of the
fact.
Sect. 9. Every person convicted under this act by any justice
21
of a Police Court, or justice of the peace, may appeal from the
sentence to the Court of Common Pleas, or, in the county of Suf-
folk, to the Municipal Court, then next to be holden in the same
county ; and such appellant shall be committed to abide the sen-
tence of the said court until he shall recognize to the Common-
wealth in the sum of not less than one hundred dollars, with two
good and sufficient sureties, with condition to appear at the court
appealed to, and there to prosecute hi« appeal, and to abide the
sentence of the court thereon, and that he will not during the
pendency of such appeal violate any of the provisions of this act.
The forfeitures of all bonds and recognizances given in pursuance
of this act shall go to the town or city where the offence was com-
mitted.
Sect. 10. The mayor and aldermen of any city, and the select-
men of any town, whenever complaint shall be made to them that
a breach of the conditions of the bond given by any person ap-
pointed as agent of said city or town, under this act, has been
committed, shall notify the person complained of, and if, upon a
hearing of the parties, it shall appear that any breach has been
committed, they shall revoke and make void his appointment.
And whenever a breach of any bond, given to the inhabitants of
any city or town in pursuance of the provisions of this act, shall
be made known to the mayor and aldermen, or selectmen, or shall
in any manner come to their knowledge, they shall, at the expense
and for the use of said city or town, cause the bond to be put in
suit in any court proper to try the same.
Sect. 11. The commissioners of counties, and the mayor and
aldermen of the city of Boston, whenever complaint shall be made
to them that a breach of the conditions of the bond given by any
person authorized for their respective county or city, under this
act, to manufacture and sell spirituous or intoxicating liquors, as
provided in the fourth and fifth sections of this act, has been com-
mitted, shall notify the person complained of, and if upon a hear-
ing of the parties it shall appear that any breach of such bond has
been committed, they shall revoke and make void his authority.
And whenever a breach of any bond given by a manufacturer to
the inhabitants of any county, or of the city of Boston, in pursu-
ance of any of the provisions of this act, shall be made known to
the mayor and aldermen of the city of Boston, or to the commis-
sioners of the county where the offence is said to have been com-
mitted, or shall in any manner come to their knowledge, they
shall, at the expense and for the use of said city or county, cause
the bond to be put in suit in any court proper to try the same.
Sect. 12. No person shall be allowed to be a manufacturer of
any spirituous or intoxicating liquors for sale, or a common seller
thereof, without being duly appointed or authorized as aforesaid,
on pain of forfeiting, on the first conviction, one hundred dollars
and the costs of prosecution, and in default of payment thereof,
22
the person so convicted shall be imprisoned sixty days in the com-
mon jail or house of correction, and shall be required to give bonds
in a sum of not less than two thousand dollars, that he will not, within
one year from such conviction, violate any law of the Common-
wealth concerning the manufacture or sale of spirituous or intox-
icating liquors ; and on the second conviction, the person so con-
victed shall pay the sum of two hundred dollars and costs of pros-
ecution, and in default of payment shall be imprisoned four months
in the common jail or house of correction ; and if it be more than
one year from the first conviction, he shall be required to give
like bonds as on said first conviction ; and on the third and every
subsequent conviction, he shall pay the sum of two hundred dol-
lars, and shall be imprisoned four months in the common jail or
house of correction, in the county where the offence was com-
mitted ; said penalties to be recovered before any court of compe-
tent jurisdiction, by indictment or by action of debt in the name of
the city or town where the offence shall have been committed.
And whenever a default shall be had of any recognizance arising
under this act, scire facias shall be issued, returnable at the next
term, and the same shall not be continued unless for good cause
satisfactory to the court. And three several sales of spirituous or
intoxicating liquors, either to different persons or to the same per-
son, shall be sufficient to constitute a violation of this section ; and
delivery in or from any store, shop, warehouse, steamboat or other
vessel, or any vehicle of any kind, or any building or place other
than a dwelling house, shall be deemed prima facie evidence of a
sale ; and a delivery in or from a dwelling house, with payment
or promise of payment, either express or implied, on, before, or
after such delivery, shall be held to constitute a sale within the
meaning of this act. Any if any clerk, servant, or agent, or any
other person in the employment, or on the premises of another,
shall violate the provisions of this section, he shall be held equally
guilty with the principal, and on conviction shall suffer the same
penalty ; and where any act in violation of the provisions of this
section has been committed by any clerk, servant, or agent, or
other person as aforesaid, upon the premises of another, the names
of all the parties implicated, either as principal, clerk, or other
person, may be included in the same complaint and warrant and
indictment, and all the parties may be tried at the same time, and
judgment to be rendered accordingly; and each person so impli-
cated and convicted shall incur the fines and forfeitures provided
for the offence ; and two or more acts of violation of the provisions
of this section may be alleged in the same complaint or indictment,
and be tried at the same time, and conviction thereon, or on any
of them, shall operate upon the defendants in the same manner as
if the action had been upon separate complaints, and the convic-
tions had at separate trials : provided, that nothing in this act shall
be construed to prevent the manufacture or sale of cider for other
23
purposes than that of a beverage ; or the sale and use of the " fruit
of the vine" for the commemoration of the Lord's supper.
Sect. 13. All cases arising under this act, whether by action,
indictment, or complaint, which shall come before any court, either
by appeal or original entry, shall take precedence in said court of
all other business, except those criminal cases in which the parties
are actually under arrest awaiting a trial ; and the court and the
prosecuting officer shall not have authority to enter a nolle prosequi,
or to grant a continuance in any case arising under this act, either
before or after the verdict, except where the purposes of justice
may require it, and a nolle prosequi shall not be entered by the
prosecuting officer, except with the concurrence of the court.
Sect. 14. If any three persons, voters in the town or city
where the complaint shall be made, shall, before any justice of the
peace, or judge of any Police Court, make complaint, under oath
or affirmation, that they have reason to believe, and do believe,
that spirituous or intoxicating liquors are kept or deposited, and
intended for sale, by any person not authorized to sell the same in
said city or town, under- the provisions of this act, in any store,
shop, warehouse, or in any steamboat or other vessel, or in any
vehicle of any kind, or in any building or place in said city or
town, said justice or judge shall issue his warrant of search to any
sheriff or deputy sheriff, or city marshal or deputy marshal, or to
any constable, who shall proceed to search the premises described
in such warrant ; and if any spirituous or intoxicating liquoi's are
found therein, he shall seize the same, and convey them to some
proper place of security, where he shall keep them until final ac-
tion shall be had thereon ; and such liquors so seized, together
with the implements of the traffic, maybe used in evidence against
any person charged with the unlawful manufacture or sale of
spirituous or intoxicating liquors; but no dwelling house shall be
searched, unless one of said complainants shall make oath or affir-
mation, that he has reason to believe, and does believe, that such
liquors have been sold therein, by the occupant thereof, or by his
consent or permission, within the time of one month of making
such complaint, and are then kept therein for sale ; and shall, in
his oath or affirmation, state the facts and circumstances on which
such belief is founded ; which facts and circumstances shall be
sufficient, in the judgment of the magistrate before whom com-
plaint is made, to reasonably induce said belief; and the owner or
keeper of said liquors seized as aforesaid, if he shall be known to
the officer seizing the same, shall be summoned forthwith before
the justice or judge by whose warrant the liquors were seized, and
if he fail to appear, or unless he shall prove that said liquors are
of foreign production, that they have been imported under the laws
of the United States, and in accordance therewith, that they are
contained in the original packages in which they were imported,
and in quantities not less than the laws of the United States pre-
24
scribe, or are kept for sale by authority derived under this act, or
are otherwise lawfully kept, they shall be declared forfeited, and
shall be destroyed by the authority of the written order to that ef-
fect of said justice or judge, and in his presence, or in the pres-
ence of some person appointed by him to witness the destruction
thereof, and who shall join with the officer, by whom they shall
have been destroyed, in attesting that fact upon the back of the
order by authority of which it was done ; and the owner or keeper
of said liquor shall pay a fine of twenty dollars and costs, or stand
committed for thirty days, in default of payment, if, in the opinion
of said court, said liquors shall have been kept or deposited for
sale contrary to the provisions of this act. And if the owner or
possessor of any liquors seized in pursuance of the provisions of
this section, shall set up the claim that they have been regularly
imported under the laws of the United States, and that they are
contained in the original packages, the custom-house certificates
of importation, and proofs of marks on the casks or packages cor-
responding thereto, shall not be received as conclusive evidence
that the liquors contained in said packages are those actually im-
ported therein.
Sect. 15. If the owner, keeper, or possessor of liquors, seized
under the provisions of this act, shall be unknown to the officer
seizing the same, thoy shall not be condemned and destroyed until
they shall have been advertised, with the number and description
of the packages, as near as may be, for two weeks, by posting up
a written description of the same in some public place, that if such
liquors are actually the property of any city or town in the State,
and were so at the time of their seizure, purchased for sale by the
agent of said city or town, for medicinal, chemical, or mechanical
purposes, only, in pursuance of the provisions of this act, or the
propei'ty of some person duly authorized to manufacture and sell
such liquors under this act, and v/ere lawfully in his possession at
the time of such seizure, or were otherwise lawfully kept, they
may not be destroyed ; but upon satisfactory proof of such owner-
ship or lawful possession, within said two weeks, before the justice
or judge by whose authority said liquors were seized, said justice
or judge shall deliver to the agent of said city or town, or person
authorized or possessed as aforesaid, an order to the officer having
said liquors in custody, whereupon said officer shall deliver them
to said agent or person, taking his receipt therefor on the back of
said order, which shall be returned to said justice or judge.
Sect. 16. If any owner or keeper of liquors, seized as afore-
said, shall appeal from the justice or judge by whose authority the
seizure was made, he shall give a bond in not less than two hun-
dred dollars, with two good and sufficient sureties, to appear at the
■<;ourt appealed to, and there to prosecute his appeal, and to abide
the sentence of the court thereon, and that he will not, during the
pendency of such appeal, violate any of the provisions of this act.
25
or, in default of such bond, he shall stand committed to abide the
sentence of the court appealed to ; and in case of such appeal, if
the final decision shall be against the appellant, that such liquors
were intended by him for sale, contrary to the provisions of this
act, then such liquors shall be destroyed, as provided in section
fourteen. But nothing contained in this act shall be construed to
prevent any chemist, or artist, or manufacturer, in whose art or
trade they may be necessary, from keeping at his place of busi-
ness such distilled liquors, as he may have occasion to use in his
art or trade, but not for sale.
Sect. 17. It shall be the duty of any mayor, alderman, select-
man, city marshal, or deputy marshal, sheriff, deputy sheriff, or
constable, if he shall have information that any intoxicating liquors
are kept or sold in any tent, shanty, hut, or place of any kind for
selling refreshments in any public place on or near the grounds of
any cattle show, agricultural exhibition, military muster, or any
public occasion of any kind, to seize such liquors and arrest the
keeper or keepers of such place, and take them forthwith, or as
soon as may be, before some justice of the peace, or judge of some
Police Court, with the liquors so found and seized, and upon proof
and complaint that such liquors are intoxicating, that they were
found in the possession of the accused, in a tent, shanty, or other
place, as aforesaid, he or they shall be sentenced to the county
jail or house of correction thirty days ; and the liquors so seizecj
shall be destroyed by order of said justice or judge.
Sect. 18. If any person arrested under the preceding section,
and sentenced as aforesaid, shall claim an appeal, he shall give a
bond in a sum not less than one hundred dollars, with two good
and sufficient sureties, to appear at the court appealed to, there to
prosecute his appeal, and to abide the sentence of the court thereon,
and that he will not, during the pendency of such appeal, violate
any of the provisions of this act, or, in default of such bond, stand
committed to abide the sentence of the court appealed to. In any
suit, complaint, or indictment, or other proceeding against any
person for a violation of any of the pi'ovisions of this act, other than
for the first offence, it shall not be requisite to set forth particularly
the record of a former conviction, but it shall be sufficient to allege
briefly that such person has been convicted of a violation of the
seventh section of this act, or as a manufacturer, or common seller,
as the case may be ; and such allegation in any civil or criminal
process, in any stage of the proceedings, before final judgment,
may be amended without terms and as a matter of right.
Sect. 19. All payments or compensations for liquors sold in
violation of law, whether in money, labor, or personal property,
shall be held and considered to have been received in violation of
law, without consideration, and against law, equity, and good con-
science ; and in any action, either at law or equity, touching such"
money, labor, or personal estate, the purchaser, and also the seller,
4
26
of such liquors may be a witness for either party. And no action
of any kind shall be had or maintained, in any court in this Com-
monwealth, for the recovery or possession of intoxicating liquors,
or the value thereof, except such as are sold or purchased in ac-
cordance with the provisions of this act.
Sect. 20. This act shall take effect in sixty days from and af-
ter its passage ; and all acts and parts of acts inconsistent with the
provisions of this act are hereby repealed ; such repeal, however,
not to affect any action or process that may have been commenced
under any existing law, before this act goes into effect. [Approved,
May 22, 1852.]
A true copy :
Attest, JOSEPH W. TUCKER, City Clerk.
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