Chamberlain v. State

• Decision Date: 07 January 1888
• Citation: 6 S.W. 524,50 Ark. 132
• Parties: CHAMBERLAIN v. STATE
• Court: Arkansas Supreme Court

6 S.W. 524

50 Ark. 132

CHAMBERLAIN v. STATE

Supreme Court of Arkansas

January 7, 1888

APPEAL from Pulaski Circuit Court, J. W. MARTIN, Judge.

Judgment reversed and cause remanded.

Sanders & Watkins, for appellant.

This case is not within the doctrine of 45 Ark. 93, which applies to cases of single sales only and not to regular vendors.

Reviews the acts 1879, 1881, 1883, and contends that up to March 30th, 1883, no one will question the appellant's right to sell. The question then is: whether sec. 15 act March 8 1879, act of February 20th, 1883, and act March 26, 1883 under all of which appellant could sell, were repealed by the Rev. act March 31, 1883, secs. 4 and 6.

The act of 1879, and the subsequent amendments, was a special law and the act of 1883 a general law, and unless the latter expressly repeals the former, or the terms of the two acts are irreconcilably in conflict, the former is not repealed. 45 Ark. 93; 4 Ark. 415.

The two acts do not cover the same field of legislation, one is to regulate the liquor traffic, the other to raise revenue; there is no conflict, and both may well stand and be construed together. 3 Ark. 276; 11 Id., 47; 23 Pick. 93; 1 Greenleaf, 240; 37 Ark. 494; Sedg. on Const. and Stat. Law, 2d Ed., 254; 35 Ark. 56; 34 Id., 264; 24 Id., 155.

Repeals by implication are not favored. 41 Ark. 150; 24 Id., 479; 31 Id., 17; 10 Id., 588; 23 Id., 304; 24 Id., 479.

F. W. Compton and E. W. Kimball, also for appellant.

Dan W. Jones, Attorney General, for appellee.

To support the declarations of law made by the trial court, we submit:

First: That the revenue law of 1883 is devoted to something more than the subject of raising revenue.

Section 5592 and subdivision 5 of section 5595 of Mansf. Digest provide the amount of license tax that shall be paid by those who "engage in the business" of selling "spirituous, vinous or malt liquors in this state."

There is no exception in favor of those who sell vinous liquors of their own manufacture in either of those sections.

Section 5594 of the Digest, taken from the revenue act of 1883, is directed--not to the subject of raising revenue, save by the enforcement of its provision by some one of the recognized methods of enforcing criminal law--but to the enforcement of a police regulation. And there is no exception in that section in favor of those who sell vinous liquors of their own manufacture. Hence we submit that section 4520 of the Dig. is repealed by section 226 of the revenue act of 1883, which expressly provides that all laws or parts of laws in conflict with it are repealed by it.

There is no exception in the statute, and the court can engraft none upon it.

Atkinson & Thompkins, also for appellee.

OPINION

SMITH, J.

By an information filed with a justice of the peace by the prosecuting attorney, Chamberlain was charged with engaging in the sale of vinous liquors without a license. He was convicted, and, on appeal to the circuit court, the cause was tried on the following agreed statement of facts:

"The defendant, E. H. Chamberlain, is the owner of a vineyard located in Pulaski county, State of Arkansas. From the grapes grown on said vineyard during the year 1887 the defendant manufactured wine, and he was on the 15th day of September, 1887, engaged in the business of, and did sell said wine in quantities less than five gallons, and the said wine was sold in sealed bottles containing not less than one quart, and said defendant did not have any license from the county court of Pulaski county, and was not at the time selling any other liquors, ardent, malt, vinous or fermented."

He was again found guilty and fined fourteen hundred dollars.

The license act of March 8, 1879, made it unlawful for any person, except manufacturers selling in original packages containing not less than five gallons, to vend any ardent, vinous, malt or fermented liquors, in any quantity or for any purpose whatever, without first procuring a license from the county court of the county in which such privilege was to be exercised. But it was declared that "this act shall not be held to apply to one who manufactures and sells wine in this state from native grapes or berries, or other fruits grown in this state, and who sells no other liquors, ardent, malt, vinous or fermented." Session acts of 1879, p. 33, secs. 1 and 15.

The object of the last mentioned provision was to encourage the planting of vineyards and the manufacture of wine in this state by discriminating in favor of native wines, against wines produced out of the state. Such discrimination, it was decided in State v. Kate Marsh, 37 Ark. 356, was beyond the power of the legislature. But the entire section was not stricken out -- only the discriminating clause--and the section was construed to exempt from the necessity of taking out license all manufacturers of wine who sell only their own products. Mansf. Digest, sec. 4520.

In 1881 the legislature enacted the "Three Mile Law," which authorized the county courts, upon the petition of a majority of the adult inhabitants living within three miles of any church or institution of learning, to prohibit the sale of intoxicating liquors within the limits of the designated territory. This act contained no exception in favor of manufacturers of wines. But the amendatory act of February 20, 1883, excepted from its operation wine manufacturers who sold in quantities of one quart, or more, or in sealed bottles. Session acts of 1881, p. 140, and of 1883, p. 53.

On the 26th of March, 1883, the license act of March 8th, 1879, was amended so as to prohibit the sale of alcohol, or intoxicating spirits of any character which are used and drank as a beverage without license. The design of this enactment was to provide for a casus omissus pointed out in State v. Martin, 34 Ark. 340, and State v. Witt, 39 Ark. 216; session acts of 1883, p. 192; sec. 1; Mansf. Dig. sec. 4507.

On the 31st of March, 1883, the legislature passed an act entitled "An act to amend and revise the revenue laws of Arkansas." This act imposes a tax of seven hundred dollars upon each and every vendor of spirituous, vinous or malt liquors doing business in the state for the term of one year or less. Every person wishing to engage in the business is required to pay for and take out a license for the privilege, under a penalty of a fine in double the amount of license he would be chargeable with. No exception is made in favor of manufacturers; and all laws inconsistent or in conflict with the act are repealed. Session acts of 1883, p. 199, secs. 4, 6 and 226; Mansf. Dig., secs. 5592-4, 5596.

The question which confronts us is, whether the general revenue law repeals by implication the prior acts which conferred an exemption upon manufacturers. For down to March 31, 1883, there can be no serious controversy about the appellant's right to sell his manufactured wines with impunity, even in prohibition districts. And we apprehend no distinction can be made between the cases of manufacturers of wine, selling in sealed bottles containing not less than a quart, and manufacturers of other liquors, selling in original packages of not less than five gallons. If the 15th section of the act of March 8, 1879, (Sec. 4520 Mansf. Dig.) has been repealed, then the provisos to the first section of the same act (Mansf. Dig., sec. 4507) must also fall.

It is argued that the act of March 31, 1883, being the latest expression of the legislative will, supersedes the former provisions upon the subject and requires all dealers in vinous liquors to take out license. And such is its effect, if construed literally and grammatically. But subsequent laws do not abrogate prior ones unless they are irreconcilably in conflict. The courts have always leaned against implied repeals. A general affirmative statute does not repeal a prior particular statute, or particular provisions of a prior statute unless negative words are used, or unless there he an invincible repugnancy between the two. The more specific provision controls the general, without regard to their order and dates. The two acts are interpreted as operating together, the specific provisions furnishing exceptions and qualifications to the general rule. Sedgwick on Stat. and Const. Law, second Ed., p. 97 et seq., and cases cited; Bishop on Written Laws, secs. 126 and 156 and cases cited.

Thus in Williams v. Pritchard, 4 Durnford & East. 2, and Edington v. Bowman, Ib. 4, an act of parliament had authorized individuals to enclose and embank portions of the soil under the river Thames and had declared that such land should be free "from all taxes and assessments whatsoever." The land tax act, subsequently passed, by general words embraced all the land in the kingdom. The question was whether the land mentioned in the former act was legally taxable. And the court of King's Bench decided it was not. The same principle was applied in Blain v. Bailey, 25 Ind 165. An act passed in 1852 had exempted farm lands included within a city from taxation for...