Seifried v. Commonwealth

• Decision Date: 05 October 1882
• Citation: 101 Pa. 200
• Parties: Seifried <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

Page 200

101 Pa. 200

Seifried versus Commonwealth.

Supreme Court of Pennsylvania.

October 3, 1882.

October 5, 1882.

October 3d 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Quarter Sessions of Westmoreland county: Of October Term 1882, No. 144.

Williams (with whom were Rock & Hazlett) for plaintiff in error.—The Act of April 12th 1875 does not repeal the Acts of 1866 and 1867, but expressly saves from its operation all special prohibitory laws: Kilgore v. Commonwealth, 94 Pa. St. 495. The argument that the Act of 1875 repeals only the penalties of the Act of 1866 is "an attempt to engraft, by an unwarranted implication, part of a general Act upon one that is purely local." The local Acts being in force, it follows, that an indictment charging the violation of the liquor law in Derry township, should pursue them strictly: Commonwealth v. Keenan, 10 Phila. 194; Commonwealth v. Reiter, 78 Penna. St. 161; Updegraff v. Commonwealth, 6 S. & R. 5; Respublica v. Tryer, 3 Yeates 451; Humphreys v. State, 17 Fla. 381; Hamilton v. Commonwealth, 3 P. & W. 142. The indictment must be sufficiently precise to protect the defendant from a second prosecution: Commonwealth v. Ramsey, 1 Brew. 422; and if the Act applies to a particular time or place the indictment must conform thereto by direct allegation: Gaddy v. State, 8 Tex. App. 127; Kearney v. State, 48 Md. 16.

W. H. Klingensmith (with whom was S. A. Kline, District Attorney) for the Commonwealth.—The Act of 1875 repeals the Acts of 1866 and 1867, so far as the penalties are concerned, since it provides a different and heavier penalty: Commonwealth v. Cromley, 1 Ashmead 181. It is well settled that a subsequent affirmative statute repeals, by implication, a former one made concerning the same matter, if it introduces a new rule on the subject and be evidently intended as a substitute for a former law, although it contains no express words repealing it: Johnston's estate, 9 Casey 511; Commonwealth v. Cromley, supra, and the cases there cited: German Society v. Philadelphia, 4 W. N. C. 213; Barber's case, 5 W. N. C. 350; Naval v. Elliott, 5 W. N. C. 35; Keller v. Commonwealth, 21 Sm. 413; Ledlie v. Monogahela Nav. Co., 6 Barr 392; Nusser v. Commonwealth, 1 Cas. 126.

Mr. Justice TRUNKEY delivered the opinion of the court, October 5th 1882.

The Act of March 27th 1867, prohibits the issue of license to any person to sell spirituous, vinous, malt or brewed liquors, for drinking purposes, within the township of Derry, in the county of Westmoreland, and provides, that if any person shall, for the purposes aforesaid, sell any such liquors, within said township, he or she, upon conviction thereof, shall be fined not less than fifty dollars, nor more than two hundred dollars; and, upon a second conviction thereof, in addition to the fine, shall undergo an imprisonment of not more than three months.

It is admitted on the part of the Commonwealth that the alleged unlawful sale by the defendant was made in the township of Derry, and that the special prohibitory statute, except its penal provision, is still in force; and it is claimed that said provision is repealed and supplied by the general statute of April 12th 1875. The punishment prescribed for violation of the general Act materially differs from that for violation of the special. In strictness, a sale contrary to the provisions of the one, is not the same offence as a sale contrary to the provisions of the other. In the township of Derry no person can be licensed to sell intoxicating liquor for use as a beverage, and all sales for such use are prohibited. It is hardly correct to say of the offender that he sold without license, as such phrase implies that persons might be licensed to sell. But the general statute provides that licenses may be issued, and "that any sale made of vinous, spirituous, malt or brewed liquors, contrary to the provisions of this law, shall be taken to be a misdemeanor." The penalty is expressly denounced against those who violate this law, and the indictment may properly charge that the...