Lead Opinion
Thе defendant is prosecuted by information for a violation of the law known as the “Local Option Law.” He was convicted, and his punishment assessed at ten days’ imprisonment in the county jail. The defendant was a retail liquor dealеr, and as such had paid for and obtained his license. . While his license was in force, the sale of intoxicating liquors was prohibited, under the provisions of the Local Option Law, in the precinct in which the defendant was doing business. He disrеgarded this prohibition, and continued to sell under his occupation license.
The principal question discussed by counsel for the defendant is whether or not the prohibition of the sale of intoxicating liquors under the “ Local Option Act” could and did revoke the occupation license of defendant, so as to render him amenable to the penalty denounced against those who should sell intoxicating liquors within the
The question is one of much interest and of grave importance, and we regret that we have not been able, for want of time, to give to it a more searching and thorough examination. The authorities bearing upon it are conflicting, and the question is still an open one.
We are of the opinion that the Legislature has full control of the subject, and can revoke occupation licenses at pleasure, and that the weight of authority sustains this proposition. We have not the time to spare from other prеssing business demanding our attention to enter upon an extended discussion of the positions assumed, and so ably argued by defendant’s counsel in their brief. We must content ourselves by citing the authorities upon which we rely to support the view we entertain. They are as follows: Cooley’s Const. Lim. 345, and note 2; Buck Pres. Church v. Mayor, etc.
We hold that whenever prohibition is declared in accordance with the Local Option Law, in any locality,
There is another question arising in this case, however, which, because of the view we take of it, will require us to reverse the judgment. The punishment assessed against the defendant was ten days’ imprisonment in the county jail. This punishment was undoubtedly assessеd under authority of an act of the Legislature approved April 17, 1879, and which took effect ninety days after the аdjournment of that session of the Legislature. The act is entitled “An act amendatory of an act entitled ‘ An act tо prohibit the sale, exchange or gift of intoxicating liquors in any county, justice’s precinct, city or town in this State, that may so elect, prescribing the mode of election and affixing a punishment for its violation,’ approved June 24, 1876.” The Legislature which enacted this law adjourned on the 24th day of April, 1879, and hence this act took effect, if it ever did tаke effect, ninety days from that date.
The second section of this act prescribes the punishment for a violаtion of the “Local Option Law” to be by fine and imprisonment in jail. (Gen. Laws 16th Leg. chap. 90, sec. 2, p. 100.) This act is amendatory of the act of June 24, 1876, which was the original “Local Option Act.” Art. 378 of the Penal Code prescribed the punishment for a violation of the “Local Option Law” to be by fine only.
The Penal Code took effect on the 24th July, 1879, the same day on which the act of April 17, 1879, above cited, took effect. The 3d section of the act adopting thе Penal Code and the Code of Criminal Procedure provides “That all penal laws and all laws relating to criminal procedure
Concurrence Opinion
I concur in reversing the judgment in this сase. But I do not concur in the opinion in so far as it holds that the operation of the Local Option Act, whеn adopted in a locality, has the effect to revoke licenses previously granted. I hold that an act of the Legislature cannot have this effect unless it contains an express provision revoking such licenses.
Reversed and remanded