Chadrick v. State

• Decision Date: 02 March 1940
• Citation: 137 S.W.2d 284,175 Tenn. 680
• Parties: CHADRICK v. STATE.
• Court: Tennessee Supreme Court

137 S.W.2d 284

175 Tenn. 680

CHADRICK v. STATE.

Supreme Court of Tennessee.

March 2, 1940

Error to Criminal Court, Davidson County; Chester K. Hart, Judge.

Clark Chadrick was convicted of possessing intoxicating liquor in violation of what is known as the "Bone-dry law," and he brings error.

Affirmed.

Charles H. Rutherford, Jr., and James W. Rutherford, both of Nashville, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

CHAMBLISS Justice.

This appeal is from a conviction of possessing intoxicating liquor in violation of what is known as the "Bone-dry law," under an indictment in four counts charging (1) receiving, (2) possessing, (3) transporting into the State and (4) transporting from place to place within the State. These offenses are defined and penalties therefor fixed in Sections 11215, 11216, 11217 and 11218 of the Code, being a codification, somewhat modified, of Chapter 12, Acts of 1917 and Chapter 22, Acts of 1925.

The defendant moved below to quash the indictment on the theory that these Code Sections were repealed by the enactment by the Legislature of Chapters 49 and 194 of the Public Acts of 1939, which provide for the sale, etc., of liquor legally in such counties as elect to come within their provisions and for the enforcement of the collection of taxes incidental to such legal sales, etc.

The argument is that these Code Sections have been repealed by implication and by virtue of the general repeal provision in Section 20 of Chapter 49. There is no express repeal by reference to these sections. It must be conceded that to sustain the contention for repeal by implication of these Code Sections, an irreconcilable conflict must appear between the old and the new legislation. State ex rel. v Collier, 160 Tenn. 403, 443, 448, 23 S.W.2d and cases therein cited. This and our other cases all hold that repeals by implication are not favored. McCord v Marshall County, 152 Tenn. 675, 280 S.W. 692; Home Bldg. & Loan Association v. Graham, 155 Tenn. 524, 296 S.W. 10. This, then, is the determinative question.

It will be noted that the repeal contended for is unique in that its application is limited, being restricted to those counties only which elect to come within the provisions of the new legislation. The contention leaves the Code Sections involved in full force in the State generally. And this is held in Akers v. State, Tenn. Sup., 137 S.W.2d 281, opinion by the Chief Justice, decided this day. The conviction in this case was in Davidson County, which has elected to bring itself within the provisions of the Act of 1939.

In the Collier case, supra [160 Tenn. 403, 23 S.W.2d 911] it was said, pertinent here, that, "One statute is not repugnant to another," that is, in irreconcilable conflict therewith, "unless they relate to the same subject and are enacted for the same purpose." The language we italicize suggests a test for application here. While the old and the new legislation may be said to relate to the same general subject, the handling and possession of liquor, it can hardly be said that the enactments were for the same purpose. The purpose of the legislation brought into the Code (Acts of 1919 and 1925) was to prohibit and prevent altogether the receipt, possession, or transportation of liquor in this State. The purpose of the Acts of 1939 was to provide for exceptions to the general law of exclusion and prohibition, to apply under particular conditions and in restricted territories, subject to detailed regulations, and to enforce collection of taxes. It is as though a proviso were added to the statutes of general prohibition. It is a quite common practice to provide, in legislation prohibiting the doing of this and that, that the prohibition will not apply upon conditions and upon terms set forth. As was said in Clark v. State ex rel. Bobo, 172 Tenn. 429, at page 445, 113 S.W.2d 374, 380, 782 of the Act of 1937, authorizing manufacture of liquor on conditions prescribed, "Chapter 193, Public Acts of 1937, does not repeal sections 11246 and 11247 of the Code, but by implication amends those sections so as to permit the manufacture of intoxicating liquors, for transportation without the State, in those counties of the State voting for such manufacture. The act is, in effect, a proviso ingrafted on the original law. The Legislature, having authority to prohibit the manufacture of intoxicating liquors, had the authority to provide conditions under which such manufacture would be permitted."

When thus viewed, and given the effect of an amendment to the Code provisions, it becomes plain that no repugnancy, or irreconcilable conflict appears. In result the law then stands thus: Liquor shall not be received, or possessed or transported in this State, except in those counties where the people elect to have liquor possessed and sold, and then only upon conditions and subject to regulations expressly provided. We find no inconsistency here. The Act of 1939 has application only (1) in excepted territory, when carved out by local will; and (2) under exceptional circumstances and on specific conditions definitely detailed in this Act.

A reading of the first section of the Act of 1939 indicates the restricted purpose above suggested:

"Be it enacted by the General Assembly of the State of Tennessee, That hereafter it shall be lawful to manufacture, store, transport, sell, distribute, possess and receive alcoholic beverages, subject to the license, payment of taxes, limitations, regulations and conditions herein provided for," and only "in the counties or municipalities of this State which by local opt [i]on elections so permits as hereinafter provided."

This language plainly imports recognition of existing legislation making it un lawful to possess, distribute, etc., such beverages, and proceeds to prescribe exceptional conditions as to (1) licenses, etc., and (2) territory, under which these generally prohibited things may be lawfully done.

Recognition of intention merely to set up exceptions to the existing laws rather than to repeal them runs through the various sections of the Act. For illustration, paragraph (8) of Section 12 provides that no person "shall bring or carry into this State for delivery or use in this State any alcoholic beverages unless the same shall be consigned to" one "duly licensed under this Act." And,...