which he has the appointment, shall expire at the end of the next session of the Senate, simply means that the appointee to this class of offices must be confirmed by the Senate, otherwise his incumbency expires with its adjournment. The governor being empowered to fill the vacancy, that is, the term of office left unfilled, if the appointee is confirmed by the Senate, he is entitled to hold for the balance of the unexpired term. B., Governor of Pennsylvania, during a recess of the Senate, appointed W. to an office, namely, that of superintendent of public instruction, made vacant by the death of the incumbent, and to which, under the Constitution, B. had the right of appointment. When the Senate met, B. sent to them the name of W. as his appointee, and it was confirmed by the Senate on January 20. On the same day B. went out of office, and P. succeeded him as governor. No commission was issued to W. by P., but, on May 23, P. appointed S. to the office. This nomination was rejected by the Senate on May 28. On the day after the Senate adjourned P. appointed and commissioned S. to the office. On a quo warranto against W., who refused to surrender the office to S., Held, that W. was in office by virtue of an appointment properly made under the Constitution and laws Even if the first appointment of Mr. Waller by the governor was only to the expiration of the next session, the subsequent nomination and its confirmation by the Senate was an appointment for the full term. The case of Lane v. Commonwealth, 103 Pa. 481, cited by the appellee, is not applicable, that case referring only to officers who are subject to removal by the governor; and still less in point are cases decided under the Constitution of the United States, which expressly requires the President "to commission all officers of the United States;" while under the Constitution of Pennsylvania the appointment is complete when confirmed by the Senate. Sec. 3, Art. II. Const. of the U. S. Even if the appointment of Mr. Waller expired at the end of the next session of the Senate, he of the State, and was entitled to hold the same until would still be entitled to hold over until a sucthe end of the unexpired term for which he was ap-cessor was appointed, which has not yet been pointed. done, Mr. Snyder's appointment having been rejected by the Senate. Appeal of D. J. Waller, Jr., defendant, from the judgment of the Common Pleas of Dauphin County, in an action of quo warranto brought against him by the Commonwealth of Pennsylvania ex rel. W. U. Hensel, attorney-general. The facts of the case will be found fully set forth in Commonwealth v. Waller, 28 WEEKLY NOTES, 252, and in the opinion of the Supreme Court, infra. Judgment of ouster upon the quo warranto having been entered by the Court, SIMONTON, P. J., in favor of the Commonwealth, the defendant took this appeal, alleging for error, inter alia, this action of the Court. Robert Snodgrass and Charles W. Stone (with them William S. Kirkpatrick), for appellant. In construing section 8, Art. IV. of the Constitution, such a construction must be adopted as will give full force and effect to every part of the section. Endlich on Interp. Stat., §§ 23, 399, 515. Warren v. Shuman, 5 Texas, 441. San Francisco R. R. Co. v. State Board of Equalization, 13 Am. and Eng. Railway Cases, 248. The second clause of the above section directly authorizes the governor to fill any vacancy in the office of superintendent of public instruction, and places no limitation upon his commission. Such an appointment is therefore either for four years, or for the balance of the term where the vacancy arises from death, as in this case. Comm'th v. Slifer, 25 Pa. 23. Meachem on Public Officers, §§ 110, 113, 395. Lane v. Com., 103 Pa. 481. Case of the District Attorney, 7 Am. Law. Reg. Angel & Ames on Corp., 83. Roney v. School District, 1 Law Times (N. S.), 72. William U. Hensel, attorney-general (with him James A. Stranahan, deputy attorney-general), for appellee. The contention that even if Governor Beaver's first commission has expired, his appointee gets a new and clear title from his second appointment and subsequent confirmation by the Senate, is directly in the face of the authorities. Lane v. Com., 103 Pa. 481. Marbury v. Madison, 1 Cranch, 137. U. S. v. Kirkpatrick, 9 Wheaton, 733. U. S. v. Le Baron, 19 Howard, 78. Case of Lieutenant Coxe, 4 Atty.-Gen. Opinions, 217. Pascall's Annotated Const., 2 ed., 175. Stanberry on Appointments to Office, 14, 19. There is nothing in the Constitution to pre vent the governor from appointing one whom the In re Marshalship, 20 Federal Rep. 379. 286. Case of Secretary of New Mexico, 12 Id. 130. 2 Story on the Const., 4th ed., page 365. January 4, 1892. PAXSON, C. J. This was a writ of quo warranto, issued at the relation of the attorney-general, directed to D. J. Waller, Jr., requiring him to show by what authority he claims to exercise the duties of Superintendent of Public Instruction of the Commonwealth of Pennsylvania. "He (the governor), shall nominate and, by and with the advice and consent of two-thirds of all the members of the Senate, appoint a secretary of the commonwealth, and an attorneygeneral during pleasure, a superintendent of public instruction for four years, and such other officers of the Commonwealth as he is or may be authorized by the Constitution or by law to appoint; he shall have power to fill all vacancies that may happen in offices to which he may appoint, during the recess of the Senate, by granting commissions which shall expire at the end of their next session; he shall have power to fill any vacancy that may happen during the recess of the Senate, in the office of auditor-general, The facts may be briefly stated as follows: On State treasurer, secretary of internal affairs, or the fourteenth day of February, 1890, Governor superintendent of public instruction, in a judiBeaver appointed and commissioned the re- cial office, or in any other elective office which spondent, D. J. Waller, Jr., as superintendent he is or may be authorized to fill; if the vacancy of public instruction, vice E. E. Higbee, deceased. In pursuance of this appointment, the respondent duly qualified, entered upon the performance of the duties of said office, and has continued therein until this time. The Senate was not in session at the time of this appointment. The next session of the Senate thereafter began on the first Tuesday of January, 1891, and on the sixth day of the same month, James A. Beaver, being still governor, nominated the respondent to the Senate for confirmation to said office for the term of four years, to date from the first day of March, 1890, and on the 20th day of the same month (January) the Senate confirmed such nomination and appointment. It is a part of the history of the case that Governor Beaver went out of office on the said 20th of January, and Robert E. Pattison was on the same day duly inaugurated as governor in his place. No commission was issued to the respondent by Governor Pattison. On the contrary, he appointed one Z. X. Snyder to said office, which appointment was rejected by the Senate on May 23, 1891. On the day after the Senate adjourned, the governor appointed and commissioned said Snyder to said office for the full term of four years, notwithstanding his rejection by the Senate. With the validity of the latter appointment we have nothing to do. Our inquiry is merely as to the right of the respondent to hold the office. There are three things about which there is no dispute, viz: (a) there was a vacancy; (b) the vacancy was filled by appointment by the governor, and (c) the governor's appointee was confirmed by the Senate. How long is the respondent entitled to hold the office under this appointment and confirmation by the Senate? For the solution of this question we must look to Article IV. section 8 of the Constitution which provides : shall happen during the session of the Senate, the governor shall nominate to the Senate, before their final adjournment, a proper person to fill said vacancy; but in any such case of vacancy, in an elective office, a person shall be chosen to fill said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding said election, in which case the election for said office shall be at the second succeeding general election." This clause of the Constitution is by no means clear. It will be noticed, however, that there are two classes of vacancies to be filled by appointment by the governor, viz., those that relate to elective offices, and those that are non-elective. In the former, the governor can only fill a vacancy until such time as the people can fill it by an election as provided by law. Hence, the commission of the governor can run no further. In the other case, non-elective offices, no time is designated during which his appointee can hold except the single provision that if a vacancy shall occur during the recess of the next session. This simply means that his appointee to this class of offices shall be confirmed by the Senate, otherwise his incumbency expires with its adjournment. But if confirmed he is entitled to hold for the balance of the unexpired term. He appoints to fill the vacancy. What is the vacancy? Clearly the term of office left unfilled when not otherwise provided for. Governor Beaver exercised this power; he filled the vacancy occasioned by the death of Higbee, and his appointee having been confirmed by the Senate, the respondent is in office by virtue of an appointment properly made under the Constitution and laws of the State. The confirmation of respondent by the Senate necessarily extends his original appointment for the balance of the unexpired term. The judgment is reversed, and judgment is now entered in favor of the respondent. S. H. T. Quarter Sessions. Commonwealth v. Tierney. chasing of refreshments, for the day or evening, to a visitor, except otherwise ordered by the social at a general or special meeting." 4. "The social house shall be opened daily, and the steward or his assistants on duty from 6 A. M. to 11 P. M., except on Saturday and Sunday, when they remain open until 12 P. M." Candidates for membership were required to be 21 years of age, to be proposed by a member, Liquor law-Act of May 13, 1887-Sale of one week in advance, who vouched for their liquor without license Clubs cannot sell eligibility, and they were elected by a majority liquors to their members without a license-4 of the members present at the meeting. They steward selling liquor to members of a club each paid an initiation fee of 25 cents, and 10 without a license may be convicted under § 15 cents a week as dues. There were on the roll of the Retail License Act of May 13, 1887-the names of 102 members. The room occupied What is a sale? by the club was about 20 feet in length and about 16 feet in width, and in it were placed 8 tables Under the Act of May 13. 1887, P. L. 108, restraining and about 20 chairs. The club subscribed for and regulating the sale of liquors, the furnishing of liquor by the steward of an unlicensed club to a member who two daily newspapers, The Item and The Times. pays for the drink a price exceeding its cost, is a sale within A copy of the charter and the by-laws and rules the intendment of section 15, and the steward may be con-hung against the wall, and the members met in victed of selling liquor without a license, although the the room, ate sandwiches, drank beer and liquor is bought by the club and the receipts from its sale are paid into the club treasury, the profits paying the whiskey, played cards, and discussed questions of politics and steam boilers. No other means of literary culture or of improvement were furnished. The steward supplied to members, and steward's salary and other club expenses. Motion for a new trial. The facts of the case are recited in the opinion, to them only, beer at the rate of five cents a infra. Maxwell Stevenson, for the motion. lieved the testimony, it was their duty to find the defendant guilty of the offence with which he was charged. The jury brought in a verdict of " Guilty," and a motion is made for a new trial, upon the ground that the above instruction was error. glass and whiskey at the rate of ten cents a glass, and these were the usual retail prices for those liquors when sold at licensed houses. At these December 31, 1891. PENNYPACKER, J. The rates there was a profit over and above the cost defendant was convicted of selling liquor without of the liquors, which went to the payment of the a license. It appears from the testimony that he salary of the steward and the other expenses of had, until within a recent period, been selling the club. The property in the liquors, and in the liquor under a wholesale license at his place, at moneys received for them, and in the appointthe southeast corner of Twenty-third and Kim-ments of the room, was in the club. It had no ball streets, in the city of Philadelphia. He license. failed to get a license for the current year. On The Court instructed the jury that, if they bethe 22d of June, 1891, the Ellsworth Club obtained a charter from the Court of Common Pleas No. 3, under the provisions of the Act of 1874 and its supplements, the purposes of the club being to provide for the "social enjoyment, literary culture and improvement of its members, and the maintenance of a reading-room." The club rented from the defendant the room he had previously occupied as a bar-room, and agreed to pay him for it rent at the rate of $10 a month. He was employed as steward of the club, of which he was not a member, at a weekly salary of $16. The by-laws provided: "The steward shall have the custody of the stores of the club, and shall dispense them to members only; he shall make such purchases and sales on behalf of the club as may, from time to time, be required of him." A set of rules were adopted, which were, inter alia, as follows: 3. "Any member shall be allowed to extend the privilege of the social house, except the pur The Act of May 13, 1887, entitled "An Act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixtures thereof," enacts in section 1, "That it shall be unlawful to keep or maintain any house, room or place, hotel, inn or tavern, where any vinous, spirituous, malt or brewed liquors, or any admixture thereof, are sold by retail, except a license therefor shall have been previously obtained, as hereinafter provided;" and in section 15, "Any person who shall hereafter be convicted of selling or offering for sale any vinous, spirituous, malt or brewed liquors, or any admixture thereof, without a license, shall be sentenced to pay a fine and undergo an imprisonment," etc. The question is, therefore, definitely raised of the general or absolute property in the goods whether a sale by the steward of a club, under to Foster, but a transfer of a special interest. the circumstances above described, is a sale That, in my view, was the result of the transacwithin the Act, and subject to its penalties. tion. I cannot think it was a sale of intoxicating The question is one about which there is much liquors by retail." difference of opinion. It is one of importance to many reputable organizations, and it confronts us in such a way that it must be determined. Like questions have arisen in a number of States under local option Acts, and statutes making the sale of liquors without a license unlawful, and Judges have differed radically in their conclusions. This case was therefore decided upon the theory that what was transferred to the purchaser was not the property in the liquor, but a special interest in it arising through the coownership with him of the other members of the club, and originating in the contract for the organization of the club. In Commonwealth v. Pomphret, 137 Mass. The English Licensing Act of 1872, section 3, 564, the defendant was charged with a violation. provides that "no person shall sell or expose for of the statute prohibiting the selling, or exposing sale by retail any intoxicating liquor without or keeping for sale, spirituous or intoxicating being duly licensed to sell the same,' and im- liquor. It appeared that the defendant was a poses a penalty. In Graff v. Evans, L. R. 8 Q member of a club of about 150 persons, organB. D. 373, the defendant was the manager of a ized for the purpose of furnishing its members bona fide club, organized for the purpose of social with refreshments, and which employed him as intercourse, mutual and moral improvement, and a steward, paying him by the month for his which had a membership of 1500, who each paid services and for the use of the room. Each an entrance fee and periodical subscriptions there- member upon joining the club paid an admission after. A member of the club purchased at the fee of one dollar and received a card. The bar of the club a bottle of whiskey and a bottle of money so obtained was used in the purchase of pale ale, paying for them, and carried them liquors as the property of the club. A number away openly; and it appeared that liquor to the of checks were printed, each representing the value of £200 was sold to members annually at sum of five cents. It was the duty of the steward a profit, over the original cost, of 33 per cent. to furnish these checks to individual members in The club was not licensed and was unincorpo-such numbers as were called for, and to receive rated, but had for its government certain rules pay for them at the rate of five cents each, to providing for a board of trustees, in whom its take care of the liquors of the club, to deliver property was vested. The magistrate convicted them to the members for drinking, in quantities the defendant, and the Court reversed the con- as called for, and to receive the price of them viction. in checks upon delivery. The liquors were the FIELDS, J., says: "I think Foster" (the pur- property of the club and there was no license. chaser) was an owner of the property, together The Court below instructed the jury that under with all the other members of the club. Any this state of facts they might find "that said member was entitled to obtain the goods on the liquors were kept by him for unlawful sale," payment of the price. A sale involves the ele- and the jury brought in a verdict of guilty. ment of a bargain. There was no bargain here, The Supreme Judicial Court held that, upon nor any contract with Graff with respect to the the evidence, it was not competent for the goods. Foster was acting upon his rights as a jury to find the defendant guilty. They reached member of the club, not by reason of any new this conclusion upon the ground that the evicontract, but under his old contract of associa-dence disclosed only a process for the distribution tion, by which he subscribed a sum to the funds of the liquors among the members of the club of the club, and became entitled to have ale and upon a prearranged plan, and that since they whiskey supplied to him as a member at a certain had decided a somewhat similar case on this price. I cannot conceive it possible that Graff principle before the passage of the Act, it must could have sued him for the price as the price of be assumed "that the Legislature intended that goods sold and delivered. There was no con-unlicensed clubs, in cities and towns whose intract between two persons, because Foster was habitants vote to grant licenses, must be dealt vendor as well as buyer. Taking the transac- with according to the construction given by this tion to be a purchase by Foster of all the other Court to statutory provisions similar to those in members' shares in the goods, Foster was as much existing statutes.' a co-owner as the vendor. I think it was a transfer of a special property in the goods to Foster, which was not a sale within the meaning of the section." 66 HUGGLESTON, J., says: "There was no transfer The case of the State v. The Easton Club came up before the Maryland Court of Appeals, 20 Atl. Rep. 783, upon a proceeding to forfeit the charter of a corporation on the ground of a misuse of its franchises. A local option law, prohibiting the sale of spirituous and malt liquors, was in force in the county in which the club was situated. From the answer to the petition of the State it appeared that the club was organized to provide rational entertainment and amusement for its members; that it made no profit; that its income was derived from an entrance fee of $3 from each new member, monthly dues, moneys paid for liquors and refreshments at the clubhouse, and additional fines and assessments; that the liquors were bought by the corporation and kept in the charge of an employé; that the members, and no other persons, got what liquors they wanted by calling upon the steward and paying a price fixed by the regulations, and that this price was fixed not for the purpose of making a profit, but for covering the outlay, and constituted a common fund to replenish the stock and meet expenses. Upon demurrer the Court below entered judgment dismissing the petition. The Court of Appeals reversed the judgment, holding: "We think the facts admitted in the answers clearly show habitual and constant violations of the law by these corporations, by the sale of liquors at their club rooms to the members of the club, and the fact that the sales were made without actual profit to the corporation is wholly immaterial." action constitues a sale, and the offence of sell- Other cases, in which similar questions have been considered and determined with considerable diversity of view, are, State v. Horacek, 41 Kansas, 87; State v. Lockyear, 95 N. C. 633; Martin v. State, 59 Alabama, 35; Rickart v. The People, 79 Illinois, 85; Marmont v. The State, 48 Ind. 21; State v. Mercer, 32 Iowa, 405; Barden v. Montana Club, 25 Pacific Rep. 1042; Com. v. Smith, 102 Mass. 144; Seim v. State, 55 Maryland, 566; Chesapeake Club v. State, 63 Id. 446; Tennessee Club v. Dwyer, 11 Lea, 452. The Pennsylvania Act of Assembly of 1887, under which the present case arises, differs in one important particular from those under consideration in England and the other States in the cases to which I have referred. The purpose of the Legislature, as appears from the preamble, was not only to regulate the sale of liquors, but also to restrain such sale. It was intended that limitations, which had not before existed, should be imposed, and to this extent it was an Act passed in hostility to the vending of liquors, treating it as a business which should be both regulated and decreased. In the State v. Essex Club, 20 Atl. Rep. 769, which case was decided by the Supreme Court of New Jersey, it appeared that suit was brought against the defendant under an Act of March 7, 1888, to recover a penalty for the illegal sale of liquors. The defendant was incorporated for social, recreative, and intellectual purposes, and was a bona fide organization. Out of its common fund it bought liquors in the name of the club and for the benefit of all of its members. The liquors were kept in the cellar. Any member gave an order to the steward and the liquor was served to him. He paid for it to the steward, or signed a check written by the steward and paid for it afterwards, It seems to me to be fairly clear that the transas it was charged to his account, which was pre-action between the Ellsworth Club and the resented to him at the end of each month. No one but a member could pay for liquors so ordered. This disposition of the liquor was not for the purpose of making a profit. The Police Court gave judgment against the club, the judgment was reversed by the Court of Pleas, and the judgment of the Pleas was reversed by the Supreme Court in a carefully reasoned opinion, reviewing all of the authorities. In the People v. Andrews, in the New York Court of Appeals, 115 N. Y. 427, it was held that where any person acting as agent or steward of an unincorporated association, organized' for social purposes, without a license, does, upon the request of a member, deliver to a person, not a member, liquors belonging to the association, and takes pay for it, although from that member, the trans ceiver of the liquor must be regarded as a sale. |