Daniels v. The State

• Decision Date: 22 April 1898
• Docket Number: 18,467
• Parties: Daniels v. The State
• Court: Indiana Supreme Court

50 N.E. 74

150 Ind. 348

Daniels v. The State

No. 18,467

Supreme Court of Indiana

April 22, 1898

From the St. Joseph Circuit Court.

Affirmed.

F. J L. Meyer, D. W. Howe, Breen & Morris, A. G. Smith, C. A Korbly, R. O. Hawkins and H. E. Smith, for appellant.

W. A Ketcham, Attorney-General, T. W. Slick, John R. Wilson and Merrill Moores, for State.

OPINION

Hackney, J.

This was a prosecution against the defendant for having sold, without a license, one quart of beer on the 1st day of May, 1897. The prosecution, it is conceded, was for one of the offenses defined by the first section of the amendatory act of 1897, Acts 1897, p. 253.

That act amended sections one, five, and seven of the act approved March 17, 1875, being sections numbered 5312, 5316, 5318, of R. S. 1881, and sections numbered 7276, 7281, 7283, Burns' R. S. 1894.

Prior to the amendment it was made unlawful to sell intoxicating liquors, in less quantity than one quart at a time or in any quantity to be drunk upon the premises, without first procuring a license according to the provisions of said act of 1875. The penalty for the violation of said provisions was prescribed by section 12 of said act. Section 7285, Burns' R. S. 1894 (5320, R. S. 1881), which is 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, out house, yard, garden, or the appurtenances thereto belonging, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined in any sum not less than twenty dollars nor more than one hundred dollars, to which the court or jury trying the cause may add imprisonment in the county jail of not less than thirty days nor more than six months."

The amendatory act of 1897 prescribed no penalty, and its first section provides that, "It shall be unlawful for any person, directly or indirectly, to sell, barter or give away, for any purpose of gain, any spirituous, vinous, or malt liquors without first procuring from the board of commissioners of the county in which such liquor is to be sold, a license as hereinafter provided; nor shall any person, without having first procured such license, sell or barter any intoxicating liquor to be drunk, or suffered to be drunk, in his house, outhouse, yard, garden, or the appurtenances thereto belonging."

Section two prescribes the license fee required to be paid, and section three provides that upon the granting of a license, the payment of the fee, etc., the "Auditor shall issue a license to the applicant for the sale of such liquors as he applied for, with the privilege of permitting the same to be drunk on the premises * * * 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 (5) gallons at a time."

It is manifest that the provisions of the old act have been so amended as to make unlawful all sales of intoxicating liquors, made without a license, regardless of quantity, saving and excepting no class other than those mentioned in the proviso just quoted, namely: Those wholesale dealers who do not sell in less quantities than five gallons at a time. It is manifest, also, that the penalty section of the act of 1875, quoted above, does not apply to sales where the quantity sold is not less than one quart at a time. In other words, the sale charged in this case, one quart, does not fall within the penalty prescribed by said section 7285, Burns' R. S. 1894, the penalty there prescribed being for sales in less quantities than one quart at a time, or sales of liquor to be drunk upon the premises. We are not to consider, in this case, the effect of section 7285, supra, upon sales of quantities of less than one quart at a time.

One objection here pressed is that no penalty is prescribed for the sale charged in this case, and this is certainly correct, so far as the last mentioned section is concerned.

On behalf of the appellee, however, it is contended that section 2186, Burns' R. S. 1894 (2090, R. S. 1881), prescribes the penalty applicable to the offense charged against the appellant. That section, enacted in 1881 as a part of the chapter (5) defining crimes and prescribing punishments, is as follows: "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 this State, shall be fined not more than two hundred dollars nor less than five dollars."

Against this contention counsel for appellant insist, (1) that this section cannot be extended to offenses which did not exist when it was enacted; (2) that there being a special statute upon the subject, namely, the act of 1875, as amended in 1897, the general provision, that of section 2090, must give way to the special provision, and, (3) that the legislative expression, by the act of 1875, and the amendment thereof in 1897, included such violations as were deemed subject to penalties, and, that, under the rule that the expression of one thing excludes all others, excluded all penalties not specifically provided.

To the first of these propositions are cited by counsel for the appellant Reg. v. Smith, L. R. 1 Crown Cas. 266; Commonwealth v. Wells, 110 Pa. 463, 1 A. 310; Commonwealth v. Erie, etc., R. R. Co., 27 Pa. 339, 67 Am. Dec. 471; Hall v. State, 20 Ohio 7; United States v. Paul, 6 Peters 141.

The case of United States v. Paul, supra, involved an act of congress expressly incorporating state legislation of a penal character, and was held not to apply to subsequent legislation of the state of the same general character as that so incorporated. There are many like cases, and the holding must be sound, upon the theory that congress will not blindly enact future legislation of a state, and will, at most, but adopt existing legislation. In Hall v. State, supra, it is broadly stated as a rule of construction, that "a statute referring to, or affecting persons, places or things, is limited in its operations, to persons, places or things, as they existed at the time the statute was passed." Such a rule of construction would be so narrow as to limit the operation of statutes to persons born before their enactment, and to places or things falling within its classification prior to and at the time of their enactment. The case of Commonwealth v. Erie, etc., R. R. Co., supra, we do not regard as in point. All of these cases depend upon the severest enforcement of the rule of strict construction, and some of them we regard as in conflict, not only with the weight of authority, but with the greater weight of reason.

The rule of strict construction as first introduced and applied for many years, has in modern times been undergoing modifications which look to the intention of the lawmaker instead of requiring perfect precision. As is said in Hardcastle on Construction of Statutes, p. 250, "'A hundred years ago,' said the court in Lyon's Case, Bell's C. C., 45, 'Statutes were required to be perfectly precise, and resort was not had to a reasonable construction of the act, and thereby criminals were often allowed to escape. This is not the present mode of construing acts of Parliament. They are construed now with reference to the true meaning and real intention of the legislature.' Therefore, 'although the common distinction,' as Pollock, C. B., said in Nicholson v. Fields, 31 L. J. Ex. 235, 'taken between penal acts and remedial acts, that the former are to be construed strictly, and the others are to be construed liberally, is not a distinction, perhaps, that ought to be erased from the mind of a judge,' yet the distinction now means little more than 'that penal provisions, like all others, are to be fairly construed according to the legislative intent as expressed in the enactment, the courts refusing on the one hand to extend the punishment to cases which are not clearly embraced in them, and on the other equally refusing by any mere verbal nicety, forced construction, or equitable interpretation to exonerate parties plainly within their scope.'" Continuing, the author says, "This was clearly pointed out by the judicial committee in The Gauntlet, L. R. 4 P. C. 191. 'No doubt,' said they, 'all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offense is within the plain meaning of the words used, and the court must not strain the words on any notion that there has been a slip, or a casus omissus, or that the thing is so clearly within the mischief that it must have been intended to be included, and would have been included if thought of. On the other hand the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed like any other instrument according to the fair common-sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.'

"'It is not true,' said Buller, J., in Rex v Hodnett, 1 T. R. 101, 'that the court in the exposition of penal statutes are to narrow the construction. We are to look to the words in the first...