Mazzia v. State

• Decision Date: 19 January 1889
• Citation: 10 S.W. 257
• Parties: MAZZIA <I>v.</I> STATE.
• Court: Arkansas Supreme Court

Page 257

10 S.W. 257

MAZZIAv.

STATE.

Supreme Court of Arkansas.

January 19, 1889.

Appeal from circuit court, Saline county; J. B. WOOD, Judge.

G. W. Murphy and L. Leatherman, for appellant. D. W. Jones, Atty. Gen., for appellee.

COCKRILL, C. J.

The appellant was convicted of carrying on the business of a liquor seller, without license, in the city of Hot Springs, Garland county, where the local option law was in force. It is argued that the penalties of the statute defining the offense are suspended in the territory, where no license can be issued; and, to sustain the position, we are cited to the case of State v. Cathey, 41 Ark. 308, where it was held that the liquor seller was liable only to the penalties pronounced by the local option law for sales in local option districts. See, too, De Bois v. State, 34 Ark. 381; State v. Orton, 41 Ark. 305. But the legislature remedied this defect in the license law by an amendment passed in 1883, known as the "drag-net proviso to the license law," (Acts 1883, p. 192,) by which it was provided that one who sold liquor in territory where sales were prohibited might be convicted as for a violation of the license law, or of the local option or special law which prevailed in the territory where the sale was made. Since that enactment we have regarded the penalties of the license act as in force in prohibition districts. and have adjudged that a conviction for selling without a license may be sustained even in a locality where no license could be legally issued. Chew v. State, 43 Ark. 361.

But the offense of carrying on the business of a liquor seller, as distinguished from the offense of casual selling without license, was created by the revenue act of 1883, which was enacted subsequent to the license law; and it is argued that this offense is not within the terms of the drag-net proviso above mentioned, and that the case is controlled, therefore, by the decision cited supra. The drag-net proviso was enacted prior to the revenue law of 1883, and by its terms extends the penalties of the general license law to sales in prohibition territory. Now, as penal acts are construed strictly so as not to extend their terms beyond the clearly-expressed intent of the legislature, the proviso mentioned cannot be said to cover the subsequently defined offense, unless it is apparent that the act creating it became a part of the license law to which the proviso is attached. The rules for construing a proviso are not different from those that govern any other legislative expression. Friedman v. Sullivan, 48 Ark. 214, 2 S. W. Rep. 785. It is the intent that is to be arrived at from the context in all cases. The proviso here is not coupled with any particular provision of the license law, but it was the evident intention to extend it to all the penalties denounced by that law. Hence its denomination as the drag-net proviso. If the license act had been expressly amended subsequent to the proviso, so as to change the penalties, or add a new offense, the terms of the proviso would attach to the amendment without doubt, because the intention to make the new provisions part and parcel of the old law would be express. But an act may be modified, changed, or amended by implication as effectually as by express reference, (Coats v. Hill, 41 Ark. 149; Scales v. State, 47 Ark. 476, 1 S. W. Rep. 769; People v. Mahaney, 13 Mich. 481;) and when that is done the law is read as one harmonious whole, just as though it had been originally so arranged by the law-making power. It is the only method of arriving at the legislative intent where there are several acts upon the same subject. Following this well-understood and common practice, the learned gentleman who revised the statutes in 1884 incorporated the liquor license provision of the revenue act of 1883 into the general license act, making the drag-net proviso read as applicable to the new penalty denounced by the revenue act. Mansf. Dig. §§ 4511, 4522. It is true we held in Blackwell v. State, 45 Ark. 90, that the revisers fell into error in substituting the penalties of the revenue act for those of the license act, but that was only upon the theory that the two acts were consistent in that respect, both penalties remaining in force; but there is nothing in that case from which it can be inferred that the revisers erred in applying the proviso to the new penalty.

The provisions of the revenue law about the liquor traffic were not designed for revenue only, else the traffic would not have been prohibited and made illegal, except upon the condition of taking out a license. The heavier penalty imposed shows it a severer disciplinarian than the former license act. The price to be paid for the liquor license provided for in it superseded the regulation of the license act, both as to wholesale and retail licenses; leaving the machinery for obtaining license to be governed by the latter act, as was ruled in Drew Co. v. Bennett, 43 Ark. 364. The license provisions of the revenue act have thus been treated by the court as modifying and amending the general license act, thereby becoming a part of it. When thus amended, the general proviso of the former...