20 Ind. App. 496 | Ind. Ct. App. | 1897
A prosecution was instituted by information against the appellee for selling malt liquor without a license', the charge being that he, at, etc., on, etc., “did then and there unlawfully sell, for the purpose of gain, a certain quantity of malt liquor, to wit, lager beer, to one Mathias Yearion, in a less quantity than five gallons at a time, to wit, one quart, he, the said Buskirk, not having at the time a valid license under the laws of said State to so sell malt liquor as aforesaid,” etc.
Upon application of appellee for a change of judge, a special judge was appointed. On motion of the appellee, the court quashed the affidavit and information, and this action of the court is assigned as error. It is agreed that the sale charged is by statute declared to be unlawful, yet it is contended on behalf of the appellee that no penalty is by law provided for such violation of the statute; that is, that there is no penalty for the sale of such liquor without a license, except where the sale is in less quantity than a quart at a time, or the liquor is sold to be drunk on the premises where sold. By section 1 of the act of March 17, 1875, Acts 1875, Spec. Sess., p. 55 (section 7276, Burns’ R. S. 1894, 5312 R. S. 1881), it was made unlawful for any person directly or indirectly to sell, barter or give away, for any purpose of gain, any spirituous, vinous
Section 12 of said act of 1875 (sec. 7285 Burns’ R. S. 1894, 5320, R. S. 1881), provides as follows: “Any person, not being licensed according to the provisions of this "act, who shall sell or barter directly <or indirectly, any spirituous, vinous, 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, outhouse, yard, garden or the appurtenances thereto belonging, shall be deemed guilty of a misdemeanor,
By an act of March 8th 1897, sections 1, 5 and 7 of said act of 1875 were amended (Acts 1897 p. 253, sections 7276, 7281, 7283, 4 Burns’ R. S. 1897). The only substantial change in section 1 was the omission of the words, “in less quantities than a quart at a time.” Section 5 was amended so as to read as follows: “If said applicant desire to sell spirituous, vinous and malt liquors, he shall paythetreasurer of said county one hundred dollars, as a license fee for one year, before license shall issue to him; such fees shall be paid into the school fund of the county in which such licenses are obtained.” In the amended section 7, it is provided, that on compliance with certain specified prerequisites, “the county auditor shall issue a license to the applicant for the sale of such liquors as he has applied for, with the privilege of permitting the same to be drunk on the premises,” etc., “which license shall specify the name of the applicant, the place of sale, and the period of time for which such license is granted: Provided, that none of the provisions of this act shall apply to any person engaged in business as a wholesale dealer, who does not sell in less quantities than five gallons at a time.”
Section 12 above quoted, has not been amended, and there is no other statutory provision specifically prescribing punishment as for a crime for the sale of intoxicating liquors without a license, or specifically denominating such sale as a misdemeanor. But section 12 provides a penalty, upon conviction, for a sale or barter by one not licensed, only when the quantity sold or bartered is less than a quart, or when the
The learned prosecuting attorney, arguing for the State, contends that the penalty provided by this section 12 should be carried into the sections as amended in 1897, and should be regarded as applicable to an unauthorized sale of a quart of malt liquor. His remarks would seem to be directed in favor of a construction of the statute based upon a conjectured purpose of the legislature, rather than of a construction based upon the intention as expressed in the language employed. With all the various aids to interpretation and construction that may properly be employed by the courts, they cannot extend a statutory punishment for crime to an act clearly outside of the meaning of the language used by the legislature in describing the offense.
It has frequently occurred that the legislature has declared an act unlawful for which it has not provided a specific penalty. To provide for such instances in one direction, doubtless, our general statute of 1881 concerning crimes contains, in section 249 thereof, the following, being section 2186 Burns’ R. S. 1894, (2090 Horners’ R. S. 1897): “Whoever, by himself or agent, transacts any business or does any act without a license therefor, when such license is required by any law of the State, shall be fined not more than two hundred dollars nor less than five dollars.” An offense against the criminal law so punishable would be a misdemeanor. Section 1642, Burns’ R. S. 1894 (1573 Horner’s R. S. 1897). To 'find instances to which this provision is applicable, manifestly we must look to other statutes. In Keiser v. State, 78 Ind. 430, it is held that this section 249 of said act of 1881 did not repeal said section 12 of the liquor law of 1875; and that said
Without proceeding upon any mere speculation as to the probability that the legislature would not do the useless thing of declaring an act unlawful without providing any penalty, and thereupon applying a penalty provided for other offenses, as suggested in argument, we find that a statute already in existence covered, with a penalty thereby prescribed, the act in question, so characterized by the legislature in 1897. The judgment is reversed, with instruction to overrule the motion to quash the affidavit and information.