Brosee v. State

| Ind. | May 25, 1854

Perkins, J.

Complaint was made before a justice of the peace of Vanderburgh county against Brosee, for selling liquor to an intoxicated person. The case went by appeal to the Common Pleas. Judgment in that Court against Brosee, who brings the cause to this Court.

The prosecution was commenced and maintained under sec. 26, p. 435, R. S. 1852, vol. 2, which enacts that—

“ If any person, by himself or agent, shall sell or give any intoxicating liquor to any minor, without the consent of his parent or guardian, or shall sell or give any intoxicating liquor to any person, at the time in a state of intoxication, he shall be fined,” &c.

In 1853, the legislature passed an act, approved March 4, entitled “an act to regulate the retailing of spirituous liquors, and for the suppression of evils arising therefrom,” the 19th section of which declares that, “ All laws on the subject of retailing intoxicating or spirituous liquor heretofore enacted, are hereby repealed,” &c.

This latter section, the appellant, Brosee, contends, repeals that under which he was prosecuted; while, on the other hand, it is contended that said section is not one upon the subject of retailing, and, hence, not within the operation of the repealing section of 1853.

We think the section copied from the statutes of 1852 relates to retailing—

1. Because there had been, for years before, a section standing in the same relation, in the criminal code, forbidding the sale of intoxicating liquor to minors, without the consent, &c., and to intoxicated persons, which was always understood to relate to retailing; and it is reasonable to suppose, and in accordance with settled rules of construction to hold, that the legislature, in continuing said provision, intended to use the terms of the section in the sense in which they had been before used in legislating upon the same point. See R. S. 1843, p. 980, see. 95.

J. E. Blythe and J. Lockhart, for the appellant. M. S. Johnson, for the state.

2. Any other interpretation, or a taking of the terms of the section in then- literal, general sense, would lead to absurdity; and it is a settled rule, that where such would be the case, a more limited meaning must be given. To illustrate. A grocery keeper at a point back from Eva/nsville, sends an order, accompanied by the cash, to a wholesale dealer in that city, for goods, including a barrel of whisky. He is drunk at the time; but the order is nevertheless filled by the Evansville merchant. Is he liable to prosecution?

A minor commences business for himself. He has no guardian. It is every day’s experience that such cases occur. The minor is a steady, honest young man. He purchases at a wholesale house in Evansville, goods, including a barrel of brandy. Is the wholesale dealer making, the sale liable to be fined?

We see from these illustrations that the selling intended by the statute in question, was one to the person to be used (be probably drank by him, or his comrades) at the time and place of purchase — a retailing. Such were the transactions to be prevented. We think there can be no doubt about it.

The section, then, being upon the subject of retailing, was repealed by the liquor act of 1853, an act avowedly designed to cover the whole ground of liquor selling.

It may have been an unfortunate omission in the act, in failing to provide for such cases as the present, but the remedy is with succeeding legislatures.

Per Curiam. — The judgment is reversed.