
    No. 8544.
    City of New Orleans vs. J. Jané.
    Selling liquors by the (Iriuh is not part of the business of a confectionery, and is not covered "by a confectioner’s license.
    "When a confectioner sells liquors by tlie drink, lie combines two kinds of business, and under the terms of tbe statute, is liable for a separate license on each.
    APPEAL from the Eirst City Court for the City of Now Orleans. Skinner, J.
    
      J. Ward Gurley, Jr., Assistant City Attorney, II. G. Morgan, for Plaintiff and Appellee:
    A licensed confectioner cannot sell liquor, or keep a bar, at his confectionery, without a liquor license; the barroom business and that of the confectionery are specially designated and separated in Section 11, Act 119 of 1880.
    When two or more kinds of business are combined, except as specially provided for in Section 6 of Act 119 of 1880, a separate license is required for each kind of business. Section 13, Act 119 of 1880.
    
      The lowest license tlmt can he issued under Act Ho. 119 of 1880, for the sale of liquor in quantities loss than a pint, is a lioense for fifty dollars. See proviso to Section 11 of said Act.
    “A confectionery is aplace for sweetmeats; aplacewhero sweetmeats and similar things are made and sold.” Webster’s Dictionary.
    The legislature can, from motives of public policy, require a special license for the sale of liquors, in addition to the regular license paid by merchants and dealers in other articles of trade. State vs. Holmes, 28 An. p. 765.
    
      Joseph P. Eornor, Francis W. Balcer, for Defendant and Appellant:
    Whero a confectioner, as part of his business, sells liquors which are drank upon the premises, a single license is sufficient. Act 119 of 1880.
   The opinion of the Court was delivered by

Fenner, J.

The City of New Orleans sues the defendant for a license of fifty dollars for the sale of liquor, in less quantities than a pint, at his confectionery.

The defense is that defendant has paid his license for his confectionery; that it is part of the business of confectionaries, as conducted in New Orleans, to sell absynth, vermouth and other liquors, by the drink, for the accommodation of their customers, and that this privilege is covered by the license to carry on the business of a confectionery.

If such a custom prevails, it is very clear that it cannot avail to make the business of selling liquors by the drink a part of the business of a confectioner. It would simply establish the prevalence of a custom in this City, among confectioners, to combine with that business the separate and distinct business of a barroom or drinking saloon.

A confectionery, as defined by Webster, is “aplace where sweetmeats and similar things are made and sold.” By no possible stretch of construction can it be held to include the selling of liquors by the drink.

The terms of the ordinance, under which the license is imposed, are as follows: “ For every restaurant, oyster house, confectionery, barroom, cabaret, coffee house, café, beer saloon, liquor exchange, drinking saloon, grog-shop, or other place where anything to be drank or eaten is sold, etc., * * * provided, that no establishment selling or giving away any spirituous wines or malt liquors in less quantities than one pint, shall pay less than fifty dollars.”

We think it might be contended that the business of a barroom or drinking saloon covered the business of a confectionery, with quite as much force as sustains the reverse contention supported by defendant.

It is especially provided in the law, that “when two or more kinds of business are combined, there shall be a separate license required for each kind of business.”

Such is the precise case here.

Defendant further sets up, as a bar to the City’s claim, that his license reads: “Received from J. Jane, tbe sum of $75, for license to carry on the business of confectionery and liquors, etc., No. 164 Canal street.” Tbe City cannot be estopped from claiming ber lawful dues by such a blunder of a subordinate agent.. The receipt serves to show that the term, confectioner!/, by itself, was not. considered to cover tbe business of selling liquors, without express mention of the latter.

This case is similar, in principle, to that of State vs. Holmes, 28 A. 765, and the reasons there set forth are applicable here.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from he annulled, avoided and reversed, and it is now adjudged that plaintiff have judgment condemning defendant to pay the license claimed, viz: the sum of fifty dollars with interest at ten per cent, per annum from March 1st, 1881, until paid, defendant and appellee to pay costs of the lower court and of this appeal.

Levy, J., absent.  