State v. Welch

36 Conn. 215 | Conn. | 1869

Carpenter, J.

This is a prosecution against the defendant for the infliction of a penalty, claimed to have been incurred by him, for the violation of a by-law of the city of Meriden. The complaint is demurred to, on the ground that the charter confers upon the court of common council no power to make the by-law in question.

It is true, as the defendant claims, that the 47th section of the charter confers no authority, in terms, to impose a penalty ; and if the power claimed is derived from that section alone it might be difficult to sustain the validity of this bylaw. It is clearly inferable however from that section that the charter somewhere contains authority for making such a by-law. It plainly contemplates that the court of common council shall, from time to time, “ fix upon and designate” some “suitable hour of the evening” for closing “all saloons and other places where spirituous and intoxicating liquors are commonly kept and sold.” By a reference to the 17th section, which enumerates the subjects in relation to which bylaws may be made, we find among them, “ the preservation of public peace and good order; the prevention and quelling of riots and disorderly assemblages ; the suppression of gambling houses, and houses of ill fame, and disorderly houses ; the conferring upon the mayor and police officers of the city all powers necessary for such purposes &c.” Construing the language here' used in connection with the 47th section, we entertain no doubt that the by-law is authorized by the city charter.

But it is said that this matter is a subject of general statute law, and that it will not be presumed that the state intended to confer this power by any general expressions. The statute prohibits the sale, or the keeping for sale, of any spirituous or intoxicating liquors; but does not prohibit the keeping open of the place where they are sold, except upon the Sabbath. The statute does not apply to the evenings of week days, and consequently does not interfere with the operation of the by-law on those evenings. So that there is room to give substantial effect to the by-law. It is a case of two jurisdictions dealing with the same subject matter. Both however cannot be enforced in respect to the same act so as to subject a party to a double penalty. In such cases the superior jurisdiction would ordinarily prevail to the exclusion of the inferior. But the statute does not render the by-law wholly inoperative. The most that can be claimed is, that it is inoperative so far as its operation interferes with the operation of the statute. Such interference is not a sufficient reason for construing the charter so as to defeat the manifest intention of the legislature.

The Superior Court is advised to overrule the demurrer.

In this opinion the other judges concurred, except Hinman, C. J., who died after the case was heard but before it was decided;