People v. Sweetser

• Decision Date: 30 June 1876
• Citation: 1 Dak. 308,46 N.W. 452
• Parties: People v. Sweetser. Same v. Walbaum et al.
• Court: South Dakota Supreme Court

46 N.W. 452

1 Dak. 308

People

v.Sweetser.¹

Same

v.Walbaum et al.

Supreme Court of the Territory of Dakota.

June Term, 1876.

Error to district court, Yankton county.S. L. Spink and G. C. Moody, for plaintiffs in error. J. R. Gamble, Dist. Atty., for the People.

BENNETT, J.

The questions involved in the determination of these two cases, being, with one exception, identical, and having been argued and submitted as one cause, will be considered together in this opinion. The statutes of this territory regulating the sale of intoxicating liquors are in a somewhat confused condition; sufficiently so, perhaps, to justify counsel for plaintiffs in error in raising the question as to whether there is any offense created by them, or punishment attached to the violation of their provisions. All statutes must be construed, if possible, so as to give them validity, force, and effect, and carry out the will of the legislator. In doing this, respect must always be had to the language of the statute, the plain and obvious meaning of the words used, and the relation which one enactment bears to another, as well as their objects and purposes; and in construing an amendatory act, the old law, the mischief arising under it, and the remedy which the new law may be supposed to provide, should be considered. The traffic in intoxicating liquors is a business which, in the hands of the most prudent, and subject to the wisest control, is regarded as more or less dangerous and demoralizing to a community,-the immediate cause of most of our brawls and disturbances, and of a great proportion of our crime and pauperism. The legislative assemblies of our territory, recognizing these facts, have had two leading purposes in view in their various enactments: First. To compel those engaged in the sale of intoxicating liquors to be drank in, upon, or about the premises where sold to submit to some wholesome restraints, making them liable in damages to any one injured thereby, and requiring them to put themselves in a position of pecuniary responsibility by filing a bond in the penal sum of $3,000. Second. To enable counties and incorporated towns and cities to derive some revenue from those engaged in keeping dram-shops and tippling-houses. If men will insist on crowding the calendars of our criminal courts, making necessary a larger police force in our towns and cities to keep the peace, and multiplying the number of paupers to be charges on the public treasury, it does seem reasonable that they should be required to contribute something towards relieving the burden which the curse of intoxicating drinks lays on the community. Let us examine briefly these statutes, and see whether, even under the rules of strict construction, the facts alleged in these indictments do not constitute a public offense. The first seven sections of chapter 30, Laws 1867-68, have been repealed, and need not be considered; the remaining sections will be referred to hereafter. Section 1 of chapter 25, Laws 1872-73, approved January 10, 1873, provided that it should be unlawful for any person to sell intoxicating liquors to be drank in, upon, or about the premises where sold, without first having obtained a license and given a bond. Section 2 makes it unlawful to sell to minors, except upon the written order of parents, etc., or to persons intoxicated, or who are in the habit of getting intoxicated. Section 4 reads as follows: “For every violation of the provisions of the first and second sections of this act every person so offending shall forfeit and pay a fine of not less than $20 nor more than $100.” The legislature of 1874-75 passed another act on this subject, (chapter 21,) entitled “An act amending an act entitled ‘An act to provide against the evils resulting from the sale of intoxicating liquors in the territory of Dakota,’ approved January 10, 1873.” The first section of this act commences as follows: “Be it enacted,” etc., “that section 1 of an act entitled,” etc., “ approved January 10. 1873, be amended so as to read as follows.” As the provisions of section 4, Act 1872-73, applied to sections 1 and 2 of that act, and as section 1 has been repealed by the enactment of a substitute, it is now contended that there is no punishment prescribed for a violation of the provisions of the act of 1874-75. There might be something in this position were this act of 1874-75 an independent, isolated act, perfect and complete in all its provisions, and not amendatory to the act of 1872-73, nor necessarily connected with its provisions by its very language as well as its relation to the same subject-matter, and having the same object and purpose. If the last act had amended the former one by reducing the penalty in the bond, or by enlarging or abridging its conditions, or had it struck out all of section 1 relating to a bond and left it simply unlawful to sell without license, or had it struck out all relating to a license and made it unlawful to sell without first filing the bond, would not the provisions of section 4 still have applied? Certainly so clear a proposition could not be questioned. If it could be amended piecemeal, now a part and then a part, until it might be an entirely new section, why might it not be done by one act, by at once striking out and inserting or amending so as to read entirely different? I think no principle plainer or better settled than that an amendment becomes a part of the original act, whether it be the change of a word, figure, or line, or the striking out of an entire section, or striking out and inserting, or in any other way modifying or altering its provisions. Where an amendatory act sets forth the entire sections amended, they are to be construed as introduced into the place of the repealed sections, and in view of the provisions of the original act after such introduction. McKibben v. Lester, 9 Ohio St. 627. Thus the words in the amendatory act, “under the limitations herein provided,” must be held to apply to the limitations of the original act after the amended sections are in place. Id. Also, Conrad v. Nall, 24 Mich. 275. The amendment of a statute by a subsequent one operates, as to all acts done subsequent thereto, as though the amendment had been a part of the original statute. Holbrook v. Nichol, 36 Ill. 161. And in England it has been held that where a new proviso was substituted for an old one in nearly the same terms, the new proviso and the original statute must be read as one act, i. e., as though the proviso had originally been in the amended form. Queen v. St. Giles, 3 El. & El. 224. I therefore hold that section 1, c. 21, Laws 1874-75, was enacted in lieu of and took the place of section 1, c. 25, Laws 1872-73, the new being substituted for the old section; and that this new section and the old statute into which it has been inserted must be read as one act, as though it originally had been in the amended form; and any one violating its provisions is punishable as provided in section 4.

Again, it is contended that defendants cannot be punished unless guilty of a violation of both sections 1 and 2, a violation of the provisions of one of these sections alone not being sufficient, as section 4 provides a punishment for any one violating the provisions of the first and second sections. This objection savors entirely too much of captious hypercriticism, and I shall dispose of it with a very few words. Can it be supposed for a moment that the legislature intended to permit parties to sell, to be drank on the premises, without license or bond, provided they did not sell to the persons mentioned in section 2? Again, section 2 is an absolute prohibition of the sale of intoxicating liquors, in any quantity and for any purpose, to the persons therein named, subject to an exception in case of minors. Now can it be that the legislature intended that this section might be disregarded, and its provisions violated with perfect impunity, and with complete immunity from the possibility of punishment, provided the offender did not at the same time sell to be drank on the premises? I think the clear intention-and such is certainly the most reasonable, in fact the only reasonable, construction,-was to provide for the punishment of the violation of either section. Any other construction would render the statute a dead letter. Even a penal law should not be construed so strictly as to defeat the obvious intention of the legislature. Fur Co. v. U. S., 2 Pet. 358. “And” and “or” are convertible as the sense of the statute may require. Townsend v. Read. 10 C. B. (N.S.) 308; Boyles v. McMurphy, 55 Ill. 236. And this is the rule even in a criminal statute. State v. Myers, 10 Iowa, 448;Miller v. State, 3 Ohio St. 476.

Some question has been made as to the authority that should grant the license. This we think sufficiently answered by the provisions of section 1, third proviso: “It shall be competent and lawful for both the county commissioners of any county, and also the mayor and city council, or other authorities of any town or city situated therein, to require the payment of the license herein provided.” The bond is required to be given to the commissioners of the county. They are the fiscal agents of the county, authorized to transact all its business; and if empowered to take the bond, and approve the same, and receive and receipt, through the treasurer, for the money, it follows, as the most natural sequence, that they should issue the license, and the law clearly contemplated that, although it might, perhaps, have been stated in language more concise and definite. I therefore arrive at the conclusion that it is a public offense, under the statute of this territory, to sell intoxicating liquor to be drank in, upon, or about the premises where sold, without first having obtained a license and given bond.

On the question of jurisdiction I have only this to say: It will be borne in mind that in our view, as before...