8 Blackf. 568 | Ind. | 1848
This was an indictment in the Marion Circuit Court against Charles Garner for retailing spirituous liquors without a license. Plea, not guilty; trial by the Court; conviction; and judgment that the defendant pay a fine of two dollars and the costs of prosecution, and stand committed, &c.
The indictment was found at the October term of the Court in 1846, and charges a selling on the first day of October of that year. The sale was in Centre township, in the county of Marion. The indictment was predicated upon the 93rd sect, of the R. S. 1843, p. 979, which enacts that every person not being licensed, &c., who shall sell any spirituous liquors, &c., shall be fined, &c.
The defendant admitted that he sold the liquor; and he
The question then arises, does a law imposing, with a view to the restraining of the traffic in spirits, such conditions upon the privilege of obtaining a license to retail, as may put it out of the power of any person to obtain such license, by implication, repeal all laws against retailing, and open the door to every one to practise the business with impunity?' If the power to control the business of selling spirituous liquors is possessed by. the legislature, and that it is has not been denied hr this case, we do not see how this question can be answered in the affirmative; and even if the legislature does not possess such power, that fact cannot affect the answer to the question. Has any one ever contended, that the-law requiring the applicant to obtain the certificate of twelve freeholders of his township that a license to retail was demanded by the public interest before he could obtain it, repealed the penal section in question in those townships where no applicant could obtain such certificate, and consequently none could obtain such license ? Where is the difference, in principle, between requiring the applicant to obtain the certificate of twelve freeholders, and requiring him to obtain the vote of a majority of the electors in favour of the license?
We think the local act of 1846 did not repeal the penal section in the R. S. against retailing.
We have been referred to the case of Taylor v. The State, 7 Blackf. 93. We do not think it in point. There, the statute, relied on in defence, expressly repealed so much of the penal section of the statute against vending certain kinds of merchandise, &c., as required a license to vend. There was no doubt as to what the legislature intended, at least, in that case. Here, the statute relied on in defence, as we have seen, does not expressly, nor, as we think, impliedly, repeal any provision of the statutes requiring a license to retail spirituous liquors, and there is no doubt that no such repeal was intended by»the legislature.
Whether the law of 1846 is constitutional or not, is a question that does not arise in this case, and has not been considered. For, if unconstitutional, it could of course repeal no former law, and the defendant was liable for selling without a license pursuant to former laws; and if constitutional, it does not repeal former laws; and in either view, the judgment of the Court below must be affirmed. '
The judgment is affirmed with costs.