Digitized by tine Internet Archive in 2010 witii funding from Boston Public Library http://www.archive.org/details/citydocuments539roxb 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.