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and that the sum adjudged in favor of the 5318 (Burns' Rev. St. 1894, 88 7276, 7281, 7283), appellee Thomas W. Moore included the in- prohibiting, under penalty, sales of liquor in terest so inherited by Mrs. Makemson, which less quantities than a quart without a license, -
making unlawful the sale of liquors in less interest, it is claimed, the mortgage and its
quantities than five gallons without a license, foreclosure against Mrs. Makemson carried but which prescribes no penalty for its violato the appellant. This contention, in our
tion, are governed by Burns' Rev. St. 1894, $
2186 (Rev. St. 1881, $ 2090), providing generaljudgment, must prevail. The amount of ly that whoever transacts any business without the judgment is found by deducting $1,466.66 a license, when such license is required by from the legacy of $2,200, and, after one year
law, shall be fined not more than $200 nor less
than $5. from the testator's death, and up to the
2. A general statute gives way to a special date of the judgment, adding interest at 6
statute only so far as the special statute is comper cent. per annum. There are various plete within itself. views expressed by counsel as to the time
3. Acts 1895, p. 248, providing as to sex, age,
and moral character as qualifications of appliwhen interest began to run; but even if
cants for liquor licenses, does not violate Const. from the date of the testator's death, the
U. S. art. 14, § 1, guarantying to citizens the judgment would be excessive, and, from the equal protection of the law. appellee's position, that interest began to run
4. Acts 1897, p. 253, providing that the act
shall not apply to persons engaged in the liquor when the estate should have been settled, business as wholesale dealers who do not sell the judgment was excessive by about $260. in less quantities than five gallons at a time, It is said, however, that, at the death of does not discriminate in favor of wholesale, and
against retail, dealers, so as to violate Const. Alice Moore, the claim was less than $1,000
U. S. art. 14, § 1, providing that states shall upon any reasonable theory as to interest, not deny to any person within their jurisdicand that, under the statute (Rev. St. 1894, 8 tion the equal protection of the laws. 2650; Rev. St. 1881, $ 2489), the whole of said Appeal from circuit court, St. Joseph counsum would go to the appellee, as her heir. ty; Lucius Hubbard, Judge. That section provides that upon the death Peter Daniels was convicted of selling one of the wife, leaving no child, but leaving her quart of beer without a license, and he aphusband and her mother, the husband shall peals. Affirmed. take three-fourths and the mother one-fourth
F. J. Lewis, Meyer, Hawkins & Smith, D. of the wife's estate: “provided, that if the
W. Howe, Breen & Morris, and Smith & whole amount of property, real and personal,
Korbley, for appellant. W. A. Ketcham, do not exceed one thousand dollars, the whole shall go to such
Merrill Moores, Thos. W. Slick, and John R. * widower.”
Wilson, for the State. To entitle the appellee to the whole of the estate of his deceased wife, it was incumbent
HACKNEY, J. This was a prosecution upon him to show that the estate was of
against the defendant for having sold, with-the character of that named in the proviso
out a license, one quart of beer on the 1st quoted. This obligation was not discharged.
day of May, 1897. The prosecution, it is Not a word of evidence as to the property conceded, was for one of the offenses defined left by Mrs. Moore is in the record. It is
by the first section of the amendatory act urged by the appellee that, as no evidence
of 1897 (Acts 1897, p. 253). That act amendwas offered in support of the plea of pay ed sections 1, 5, and 7 of the act approved ment, the allegation of the complaint that
March 17, 1875, being sections numbered $1,466.66 had been paid could not be consid
5312, 5316, 5318, Rev. St. 1881, and sections ered, and the judgment would be for much
numbered 7276, 7281, 7283, Burns' Rev. St. less than three-fourths of the legacy. This,
1894. Prior to the amendment it was made upon the theory of the complaint, as we have
unlawful to sell intoxicating liquors in less stated it, cannot be. Nor does the fact that
quantity than one quart at a time, or in any Mrs. Makemson filed in this case a disclaimer
quantity to be drunk upon the premises, add to the appellee's claims against the ap without first procuring a license according to pellant. Her interest was covered by the the provisions of said act of 1875. The penmortgage and its foreclosure. Nor is there
alty for the violation of said provisions was any presumption that Alice Moore died tes
prescribed by section 12 of said act (section tate, leaving to her husband the interest
7285, Burns' Rev. St. 1891; section 5320, Rev. which otherwise would go to her mother.
St. 1881), which is as follows: "Any person Presumptions are not in favor of testacy,
not being licensed according to the provibut are in favor of intestacy. The judg
sions of this act, who shall sell or barter, diment is reversed, with instructions to sus
rectly or indirectly, any spirituous, vinous, tain the appellants' motion for a new trial.
or malt liquors in a less quantity than a quart at a time, or who shall sell or barter any spirituous, vinous, or malt liquors to be
drunk or suffered to be drunk, in his house, DANIELS V. STATE.
outhouse, yard, garden, or the appurtenances (Supreme Court of Indiana. April 22, 1898.) thereto belonging, shall be deemed guilty of a INTOXICATING LIqrorS-SALE WITHOUT LICENSE
misdemeanor, and, upon conviction thereof, STATUTES--CONSTITUTIONAL LAW.
shall be fined in any sum not less than twen1. Violations of Acts 1897, p. 253,-which is
ty dollars nor more than one hundred dollars, go amendment to Rev. St. 1881, 88 5312, 5316, to which the court trying the cause may add
imprisonment in the county jail of not less required by any law of the state, shall be than thirty days por more than six months." fined not more than two hundred dollars nor The amendatory act of 1897 prescribed no less than five dollars.” Against this contenpenalty, and its first section provides that "it tion counsel for appellant insist: First, that shall be unlawful for any person directly or this section cannot be extended to offenses indirectly, to sell, barter or give away, for which did not exist when it was enacted; secany purpose of gain, any spirituous, vinous, ond, that there being a special statute upon the or malt liquors without first procuring from subject, namely, the act of 1875, as amended in the board of commissioners of the county in 1897, the general provision—that of section which such liquor is to be sold, a license as 2090 (2186)-must give way to the special hereinafter provided; nor shall any person, provision; and, third, that the legislative exwithout having first procured such license, pression, by the act of 1875, and the amendsell or barter any intoxicating liquor to be ment thereof in 1897, included such violations drunk, or suffered to be drunk, in his house, were deemed subject to penalties, and onthouse, yard, garden, or the appurtenances that, under the rule that the expression of thereto belonging." Section 2 prescribes the one thing excludes all others, excluded all license fee required to be paid, and section penalties not specifically provided. 3 provides that, upon the granting of a To the first of these propositions are cited license, the payment of the fee, etc., the by counsel for the appellant Reg. v. Smith, "auditor shall issue a license to the appli- L. R. 1 Crown Cas. 206; Com. v. Wells, 110 cant for the sale of such liquors as may be Pa. St. 463, 1 Atl. 310; Com. v. Erie & N. E. applied for, with the privilege of permitting R. Co., 27 Pa. St. 339; Hall v. State, 20 Ohio the same to be drunk on the premises, 8; U. S. v. Paul, 6 Pet. 141. The case of U.
. which license shall specify the name S. v. Paul, supra, involved an act of conof the applicant, the place of sale, and the gress expressly incorporating state legislation period of time for which such license is of a penal character, and was held not to apgranted: provided, that none of the provi- | ply to subsequent legislation of the state of sions of this act shall apply to any person the same general character as that so incorengaged in business as a wholesale dealer, porated. There are many like cases, and the who does not sell in less quantities than five holding must be sound, upon the theory that (5) gallons at a time.”
congress will not blindly enact future legisIt is manifest that the provisions of the old
lation of a state, and will, at most, but adopt act have been so amended as to make unlaw- existing legislation. In Hall v. State, supra, ful all sales of intoxicating liquors, made it is broadly stated as a rule of construction without a license, regardless of quantity, sav- i that “a statute referring to or affecting pering and excepting no class other than those sons, places, or things is limited in its opermentioned in the proviso just quoted, name ation to places, persons, or things as they exly, those wholesale dealers who do not sell | isted at the time the statute was passed." in less quantities than five gallons at a time. Such a rule of construction would be so narIt is manifest, also, that the penalty section row as to limit the operation of statutes to of the act of 1875, quoted above, does not ap persons born before their enactment, and to ply to sales where the quantity sold is not places or things falling within their classificaless than one quart at a time. In other tion prior to and at the time of their enactwonls, the sale charged in this case (one ment. The case of Com. v. Erie & N. E. quart) does not fall within the penalty pre R. Co., supra, we do not regard as in point. scribed by said section 7285, Burns' Rev. "All of these cases depend upon the severest St. 1894 (section 5320, Rev. St. 1881), the enforcement of the rule of strict construction, penalty there prescribed being for sales in and some of them we regard as in conflict, less quantities than one quart at a time or not only with the weight of authority, but. sales of liquor to be drunk upon the prem with the greater weight of reason. ises. We are not to consider, in this case, The rule of strict construction, as first inthe effect of section 7285 (section 5320) su troduced and applied for many years, has in pra, upon sales of quantities of less than one modern times been undergoing modifications quart at a time.
which look to the intention of the lawmaker One objection here pressed is that no pen instead of requiring perfect precision. As is alty is prescribed for the sale charged in said in Hardc. St. Const. p. 250: “ 'A hunthis case, and this is certainly correct, so far dred years ago,' said the court in Lyon's as the last-mentioned section is concerned. Case, Bell, Crown Cas. 45, 'statutes were reOn behalf of the appellee, however, it is con quired to be perfectly precise, and resort was tended that section 2186, Burns' Rev. St. not had to a reasonable construction of the 1804 (section 2090, Rev. St. 1881), prescribes act, and thereby criminals were often allowthe penalty applicable to the offense char ed to escape. This is not the present mode of ged against the appellant. That section, en construing acts of parliament. They are conacted in 1881, as a part of chapter 5, defining strued now with reference to the true meancrimes and prescribing punishments, is as ing and real intention of the legislature.' follows: "Whoever, by himself or agent, Therefore, although the common distinction,' transacts any business or does any act with as Pollock, C. B., said in Nicholson v. Fields, out a license therefor, when such license is 31 Law J. Exch. 235, “taken between penal
acts and remedial acts, that the former are Collier v. Worth, L. R. 1 Exch. 464; Attorney to be construed strictly, and the others are General v. Saggers, 1 Price, 182; Williams v. to be construed liberally, is not a distinction, Drewe, Willes, 392; In re Lloyd, 51 Kan. 301, perhaps, that ought to be erased from the 33 Pac. 307; Hardc. St. Const. (2d Ed.) p. mind of a judge,' yet the distinction now 252; Maxw. Interp. St. p. 93. The last-nainmeans little more than that penal provisions, ed author makes this statement: “Except in like all others, are to be fairly construed ac some few cases where a statute has fallen cording to the legislative intent as expressed under the principle of excessively strict conin the enactment, the courts refusing on the struction, the language of a statute is generalone hand to extend the punishment to cases ly extended to new things which were not which are not clearly embraced in them, and known and could not have been contemplated on the other equally refusing, by any mere by the legislature when it was passed. This verbal nicety, forced construction, or equita occurs when the act deals with a genus, and ble interpretation, to exonerate parties plainly the thing which afterwards comes into existwithin their scope.' Continuing, the author ence is a species of it. Thus, the provision of says: "This was clearly pointed out by the Magna Charta which exempts lords from the judicial committee in The Gauntlet, L. R. 4 | liability of having their carts taken for carP. C. 191. No doubt,' they say, 'all penal riage was held to extend to degrees of nostatutes are to be construed strictly,--that is bility not known when it was made, as dukes, to say, the court must see that the thing | marquises, and viscounts. 17 Geo. II. (A. D. charged as an offense is within the plain 1744), which gave parishioners the right of inmeaning of the words used,--and the court specting the accounts of church wardens and must not strain the words on any notion that overseers under the poor law of Eliza beth, there has been a slip, or a casus omissus, was held to extend to those of guardians, ofor that the thing is so clearly within the mis ficers who were created by 'Gilbert's Act (22 chief that it must have been intended to be Geo. III.), passed in 1783. 13 Eliz. c. 5, which included, and would have been included if made void, as against creditors, transfers of thought of. On the other hand, the person lands, goods, and chattels, did not originally charged has a right to say that the thing char apply to copyholds or choses in action, as ged, although within the words, is not within these were not seizable in execution, but, the spirit, of the enactment. But, where the when they were made subject to be so taken thing is brought within the words and within (1 & 2 Vict. c. 110), they fell within the opthe spirit, there a penal enactment is to be eration of the act. The act of Geo. II., wbich construed, like any other instrument, accord protects copyright in engravings by a penalty ing to the fair common-sense meaning of the for piratically engraving, etching, or otherlanguage used; and the court is not to find wise, or 'in any other manner copying them, or make any doubt or ambiguity in the lan extends to copies taken by the recent invenguage of a penal statute, where such doubt tion of photography." The author cites some or ambiguity would clearly not be found or cases already cited by us and many others. made in the same language in any other in In State v. Hays, supra, it was held that a strument.' It is not true,' said Butler, J., in township trustee, holding his office under an Rex v. Inhabitants of Hodnett, 1 Term R. act for the creation of townships, was sub101, 'that the court in the exposition of penal ject to criminal prosecution under a prior statstatutes are to narrow the construction. We ute defining the crime of embezzlement by are to look to the words in the first instance, public officers and prescribing punishment and. where they are plain, we are to decide therefor. In Taylor v. Goodwin, supra, an on them.' Consequently, 'when large enough old statute forbade the driving of “any sort words are used,' a prohibition may be ex of carriage * furiously, so as to injure tended so as to apply to something which has life or limb of any passenger"; and it was come into existence since the passing of the held that one riding a bicycle furiously upon act. Thus, in Graves v. Ashford, L. R. 2 C. the highway was subject to the penalties of P. 410, it was held that the piracy of a pict the statute, although bicycles were unknown ure by means of photography is within the at the time the statute was enacted. In re statutes of Geo. II. and Geo. III., which were Lloyd, supra, a general statute of 1868 made passed for the protection of artists and en attempts to commit offenses punishable. At gravers, although photography was not a that time the age of consent was 10 years. known art at the time those statutes were In 1887 the age of consent was made 18 years, passed." The authorities which we regard and it was held, criticising the cases of Hall as in conflict with this contention of counsel v. State, supra, and U. S. v. Paul, supra, that are State v. Kidd, 74 Ind. 554; Mercer y. Cor the earlier statute applied, notwithstanding bin, 117 Ind. 450, 20 N. E. 132; State v. Bus the later change in the age of consent. U. S. kirk (Ind. App.) 48 N. E. 871; U. S. v. Nih v. Nihols, supra, was a prosecution for perols, 27 Fed. Cas. No. 15,880; U. S. v. Barton, jury under sections 1 and 7 of the bankrupt 24 Fed. Cas. No. 14,534; State v. Hays, 78 law of 1841. At that time an act of 1823 was Mo. 600; Campbell v. People, 8 Wend. 636; in force, defining perjury and prescribing a State v. Becton, 7 Baxt. 138; Graves v. Asb penalty. It was insisted that the act of 1825 ford, supra; Gambart v. Ball, 14 C. B. (X. S.) did not govern cases of false swearing under 306; Taylor v. Goodwin, 4 Q. B. Div. 228; the subsequent act. The court said: “The
art of 1825 is an act defining the crime of are not inconsistent with one another, and perjury generally, and is not confined in its which relate to the same subject-matter, are operation to acts passed anterior to that time, in pari materia, and should be construed tobut is applicable to false swearing under the gether, and effect be given to them all, albankrupt law as well as in other cases. The though they contain no reference to one anbankrupt law must be construed with the act other, and were passed at different times." of 1825 as in pari materia." Our own case of 23 Am. & Eng. Enc. Law, p. 311, and the State v. Kidd, supra, involved a question di many authorities there cited. It is perhaps rectly analogous to that here under consider true that this rule of construction does not ation. An act of 1877 made it unlawful to apply to a special statute, which is complete sell liquors "upon the day of any state, coun and comprehends the whole subject to which ty, township, primary or municipal election." it is directed. Harold v. State, 16 Tex. App. An act of 1879 provided that town trustees 157. But we are here dealing with a statute contemplating the building of waterworks which, though special, is not complete within should submit the question to the voters of itself. It may be here said that the rule inthe town at a special or general election. It sisted upon by counsel for the appellant, that was held that a sale of liquor upon the day general statutes give way to special statutes of an election as to the building of water upon the same subject, applies, also, only works was punishable under the act of 1877. when the special statute is complete within The court, speaking by Woods, J., said: “It itself. may be noted that the law authorizing the The rule that statutes, when pari materia, holding of such an election was not enacted should be construed together, suggests that until two years after the passage of the law we should look into the body of the law, and, under which the prosecution was instituted, where it may be ascertained that some part of and on this fact it may have been held that the law is ineffective without considering some the law defining the offense should be con other part thereof, we should look to such strued to include only such election days as other part for the purpose of giving effect were then known to the law, and that the act to the whole as well as to ascertain the leg. providing for new elections could not enlarge islative intention. Legislative intention, as the scope of a criminal statute theretofore en is well understood, is the first principle of acted. This argument, if admitted, proves statutory construction; and, if any interpretoo much. The times for holding elections țation and construction can be reasonably have been, and doubtless will be, frequently made which will save an enactment of the changed, but it has not been deemed neces legislature from a barren and meaningless sary on that account to change or re-enact purpose, it should be done. The courts have the penal or criminal statutes which relate no power, of course, to supply omissions or thereto. The general terms of these statutes add to the clearly-expressed terms of a statare such as to preserve their force and ap ute, as, if section 2090 (2186) supra, were not plicability notwithstanding the changes made in the statute, the courts could not save the in other laws. The language of the law un act of 1897 from the charge of omitting a der consideration is as general and compre penalty. The act of 1897, the act of 1875, hensive as it could well have been made, and and the act of 1881 relate to licenses, and are may as well apply to elections since provided a part of the body of the criminal laws of for as to those which were authorized by the the state. The new requirement of a license laws existing at the time of its passage, and is but an added species, and is not a departo elections concerning waterworks proposed ture from the genus or general subject of to be erected in the municipality as to an legislation comprehended within the three election of municipal officers.” In the case acts. The penalty section from the act of of Mercer v. Corbin, supra, the act of 1859 1881 (section 2090, Rev. St. 1881; section (Acts 1859, p. 185), making it "unlawful for 2186, Rev. St. 1894) contains no words inany person to ride or drive upon a brick, dicating an intention to apply its provisions stone, plank or gravel sidewalk in any town only to existing enactments. Its words are, or village," and declaring it a misdemeanor "when such license is required by any law punishable by fine, it was held that a bicycle of the state." These words are large and must be regarded as a vehicle, within the comprehensive, and apply as well to future meaning of that statute. While not directly as existing requirements. In the case of discussed, it is a matter of common knowl Hoagland v. State, 17 Ind. 488, as to the edge that the bicycle was not in use at the application of present legislation to future time of the enactment of the statute, and the legislation, we have a construction upon the conclusion reached by the court could be sup character of the words employed, as indicatported only upon the theory that the act was ing the intention of the legislature. There intended to comprehend, not only existing ve such words were found too narrow to include hicles, but such as might thereafter be known future legislation, but it was indicated that and come into use.
larger words would include such future legAnother rule of construction which leads islation. strongly to the conclusion that section 2090 To the second proposition of appellant are (2186) supra, supplies the penalty for the sale cited Kizer v. State, 78 Ind. 430, and Walter charged in this case, is that "statutes which v. State, 105 Ind. 589, 5 N. E. 735. These
cases hold that section 2090 (2186), being a by the drink for consumption upon the general provision, does not repeal the special premises, and would be subject to all of the penalty section of the act of 1875, and in restrictions with reference to location of busithis respect are not at variance with the ness, screens, etc., as applied to the saloon. general rule already stated, that a general The same would be true with reference to provision will yield to a special statute, com distillers and others who make sales to retail plete and fully covering a specific question. dealers. The scope of our laws upon the We are now dealing with a question, howev subject, we have no doubt, includes only er, in which the special statute is not full such dealers as sell to consumers, and must and complete, but omits the very element be construed with reference to such class or upon which we are to determine if the gen classes. If the brewer, the distiller, the eral statute applies. It is true that it was druggist, or the wholesale dealer, selling less said in Kizer v. State, supra, that section than five gallons at a time, desires to sell 2090 (2186) “ought to be construed as having to the consumer, he must procure a license reference to classes of business other than just as the retail dealer, the “quart shop, the sale of intoxicating liquors.” That state or the "jug house” is required to do. ment was clearly correct, upon the assump The argument against the injustice of retion that the subject of licenses for the sale quiring the same steps to procure a license, of intoxicating liquors, and the penalties the payment of the same license fee, etc., prescribed therefor, was covered by the act that the saloon keeper is required to take or of 1875. In the case of Kizer v. State, su pay, should have some force if made to the pra, it was said that section 2090 (2186) general assembly; for we feel that the intershould "be construed as applying to any ests of the liquor trade and the cause of transaction, business, or trade for which the temperance should recognize a distinction law requires a license, without providing a between the licensing and regulating of the special penalty for failing to obtain it." saloon, and the drug store or the dealer who This statement, while not directed specifical sells for home consumption. It is probably ly to the question of past or future legisla detrimental to the cause of temperance to tion, applies as well to requirements con require the druggist to convert his business cerning liquor licenses as for any other pur into a saloon at which sales by the drink pose. Further than this, we regard the two may be made, before he may sell a quart or cases mentioned as of no force upon the. more of beer, wine, or whisky to be carried question here under consideration.
to the home of the consumer for use as he In order to consider further questions pre may desire it. But this argument is not of sented, it becomes necessary to determine value when addressed to the courts, since it the classes of persons to whom the body of does not involve the validity of the law, and the liquor laws of the state now apply. relates alone to the wisdom or propriety of There has been no time when the laws of the legislature,-subjects over which the the state attempted to regulate the traffic as courts have no control. It is said that secbetween the manufacturer, the wholesale tion 1, art. 14, of the constitution of the dealer, or the jobber and the retail dealer. United States, is violated by section 1 of All legislation has been directed to restrict the act of 1895 (Acts 1895, p. 248), in dising and controlling sales to the consumer, criminating “against wholesale dealers, corand, until the act of 1897, has applied only porations, and druggists,” who may not ento the retail dealer or to one selling in quan joy, on the same terms, privileges granted tities less than one quart at a time. Consid to saloon keepers. Section 1 of the act re ering all existing legislation upon the sub ferred to relates to the description which ject, including the act of 1875, the Nicholson an applicant for license shall give of the law, and the act of 1897, we find nothing location and room wherein he desires to sell, changing the general trend and object of the and contains the proviso "that no license legislation of the state upon the subject. shall be granted to any other than a male The license now required and issued is not person over the age of twenty-one years, and only with reference to sales to consumers, one who shall at the time be of good moral' but every holder thereof may sell for con character; and provided, further, that nosumption at the time and place of sale. Pro such person shall be deemed to be of good visions as to notice of application for li moral character if within two years of the cense, as to location of room, regulations as time when such application is made he shall to screens, etc., all disclose an intention to
have been adjudged guilty the second time restrict the trade with consumers and to de of violating any of the provisions of this tect unauthorized sales to them. The li act." If this proviso is discriminating, there cense features of existing laws have not is nothing in the record disclosing that such even a remote application to sales by the discrimination affects the appellant as brewer, the distiller, or the wholesale dealer "wholesale dealer," "corporation," or "drug. to the retail dealer. If they did apply, the gist.” Its discrimination is as to sex, age, brewer, before selling and delivering less and moral character, neither of which apthan five gallons of beer or ale to the sa pears to have prevented the appellant from loon keeper, would be required to procure a enjoying the same privileges of a license onlicense authorizing him to sell beer or ale the same terms granted to any saloon keep