
    Dunkle v. Village of Junction City.
    
      Intoxicating liquors — Municipal closing ordinance — Insufficiency in designation of place — Remaining in saloon to count day’s receipts — Does not constitute violation, when — Keeping open and ■ continuing business.
    
    1. Conviction cannot be had under an ordinance intended to prohibit the keeping of any saloon open between the hours of 10 p. m. and S a. m., where there is no designation of place in the ordinance to which its provisions apply.
    2. The purpose of such an ordinance must be held to prohibit a continuance of the business of the saloon between the hours named, and conviction can not be had of a saloonkeeper who closed his saloon before 10 p. m. but remained in the saloon with his barkeeper for twenty-five minutes after 10 for the purpose of counting the rceipts of the day.
    (Decided November 10, 1913.)
    • Error : Court of Appeals for Perry county.
    By the Court (Voorhees, Powell and Shields, JJ.).
   On the 21st day of April, 1913, complaint in writing was made before the mayor of the incorporated village of Junction City, Perry county, that the plaintiff in error, Peter Dunkle, on or about the 19th day of April, 1913, being then the keeper and owner of a saloon in said village and county, did unlawfully keep open and permit his saloon to be open between the hours of 10 o’clock p. m. and 5 o’clock A. m., for the period of twenty-five minutes after 10 o’clock p. m., to-wit, until 10:25 p. m.,. contrary to the provisions of a certain ordinance of said villag'e, the first section of which reads as follows :

“Section 1. That it shall be unlawful for any person being the owner, bartender, keeper, or having charge of any saloon, building, or other place wherein intoxicating liquors are sold at retail or exposed for sale at retail, to open, keep open between the hours of 10 o’clock p. m. and 5 o’clock a. mv provided that the provisions of this section shall not apply to the sale of intoxicating liquors by a regular druggist,” etc.

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Upon the foregoing complaint the plaintiff in error was arrested, tried and convicted of said alleged offense and sentenced by said mayor to pay a fine of $35 and costs, to all of which the plaintiff in error excepted. The case was taken to the common pleas court of said county on error, which said court affirmed the judgment of said mayor, and the case was brought into this court by a petition in error for review.

Said petition in error contains various assignments of error, but in our disposition of the case we will notice only such alleged errors as were urged upon our attention.

An examination of the ordinance on which this ¿prosecution is based shows it to be somewhat vague ;,-and indefinite. While it provides that “it shall be -unlawful for any person being the owner, bartender, keeper, or having charge of any saloon, ihuitdmg, or other place wherein intoxicating liquors are sold at retail or exposed for sale at retail, to open, keep open between the hours of 10 o’clock p. m. and 5 o’clock a. m.,” there appears to be no designation of place in the ordinance to which its provisions are applicable. Criminal statutes as against one charged with an offense are to be strictly construed. Speaking for the court Judge Williams, in the case of The State v. Meyers, 56 Ohio St., 340, 350, says:

“Under that fundamental rule of strict consfruc- ’ tioh applicable to all penal laws, a statute defining a crime can not be extended by construction to persons or things not within its descriptive terms, though they may appear to be within the reason and spirit of the statute. Persons can not be made subject to such statute by implication. Only those transactions are included in them which are within both their spirit and letter; and all doubts in the interpretation of such statutes are to be resolved in favor of the accused.”

This rule of construction is alike applicable to both statutes and ordinances. But assuming that the language in the ordinance could be so construed as to harmonize with the evident intent and purpose of the ordinance, and that which was intended to be expressed therein is implied, how stands the case with reference to the other ground of error insisted upon by plaintiff in error, namely, that there was a failure of proof upon the part of said village before the mayor to sustain a conviction of the plaintiff in error? It appears that the bill of exceptions is in the nature of an agreed statement of facts, which, among other things, contains the following: “That the defendant is a saloonkeeper in said village; that on the night alleged in the affidavit the plaintiff, who is the owner and proprietor of said saloon, and his bartender, put out of the saloon all persons immediately before 10 o’clock, and at 10 o’clock p. m. locked the doors of said saloon; that after locking said doors the defendant and bartender went to his cash register to count the receipts of the day and that he remained in said saloon, with his bartender, for about twenty-five minutes after 10 o’clock p. m., for the purpose aforesaid, before they came out of said saloon; and it is agreed that the ordinance attached is a true copy of the ordinance under which the defendant was arrested and which ordinance is to be considered as part of this bill of exceptions; that no other persons were in the saloon except the said defendant and bartender.”

It is conceded that the plaintiff in error before 10 o’clock on the night in question “put out” all persons in his saloon, and at 10 o’clock locked the doors of his saloon, and that no person or persons were allowed to enter his saloon thereafter and before 5 o’clock the following morning. But it is claimed that after so closing his saloon the plaintiff in error and his bartender remained in his saloon “to count the receipts of the day,” and so remained about twenty-five minutes “before they came out of said saloon,” and that this act of the plaintiff in error was in violation of the provisions of said ordinance. While it appears that the plaintiff in error was the owner and proprietor of said saloon, it does not appear that said saloon was not connected with the building in which he resided, and if it was, and he went from his saloon into his residence, it would scarcely be claimed that going from his saloon' into, his residence would be such a “keeping open” as to fall within the purview of said ordinance. But the real charge here is that the plaintiff in error and his bartender remained in the saloon after 10 o’clock p. m. to count the cash, after the doors of the saloon were locked and kept locked. It does not appear whether there were or were not any lights in the room, the inference being however that there was at least one light. But whatever the number of lights, was the sole fact of the plaintiff in error and his bartender’s remaining in the saloon for the time and for the purpose indicated, after 10 o’clock p. m,, an offense within the intent and meaning of said ordinance? Was it a keeping open of the saloon, in contemplation of said ordinance? Or does the ordinance seek to punish those who would keep open the saloon after the hour named for the purpose of continuing their business? While the ordinance in effect amounts to a prohibition, it is in our judgment a prohibition intended to operate against carrying on the business after a stated hour.

Mr. T. B. Williams, for plaintiff in error.

Mr. J. W. Dugan, for defendant in error.

For the reasons stated we think that the mayor erred in overruling the motion of the plaintiff below to dismiss said case, and the court of common pleas likewise erred in affirming the judgment of the mayor. The judgment of the mayor and that of the court of common pleas will therefore be reversed, and it is ordered that the plaintiff in error be discharged from further custody.

Judgments reversed.  