State v. Hirsch
| Decision Date | 24 June 1890 |
| Docket Number | 15,601 |
| Citation | 24 N.E. 1062,125 Ind. 207 |
| Parties | The State v. Hirsch |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Sept. 25, 1890.
From the Randolph Circuit Court.
Judgment reversed, with instructions to overrule the motion to quash the indictment.
L. T Michener, Attorney General, and J. B. Ross, for the State.
F Winter, J. B. Elam, L. W. Norton and J. S. Engle, for appellee.
The defendant was indicted, under section 2098, R. S. 1881, for selling intoxicating liquors at the town of Winchester on the day of a primary election in the town of Winchester, township of White River, in the county of Randolph and State of Indiana, held by a political party for the election of candidates for various offices to be voted for at the next general election.
The defendant moved to quash the indictment, and the court sustained the motion, and quashed the indictment, to which ruling of the court the State at the time excepted, and prosecutes this appeal, and assigns such ruling as error.
The question involved is whether or not it is a crime for a person having a license under the law to sell intoxicating liquors in a less quantity than a quart at a time on the day of a primary election held by a political party to select by primary election candidates to be voted for at a general election. No objection is made as to the form of the indictment.
Section 2098, R. S. 1881, is as follows: "Whoever shall sell, barter, or give away to be drunk as a beverage, any spirituous, vinous, malt or other intoxicating liquor, upon Sunday, the fourth day of July, the first day of January, the twenty-fifth day of December (commonly called Christmas day), Thanksgiving day as designated by proclamation of the Governor of this State or the President of the United States, * * or any legal holiday; or upon the day of any election in the township, town, or city where the same may be holden; or between the hours of eleven o'clock p. m. and five o'clock a. m.,--shall be fined," etc.
This section of the statute makes it a crime to sell, barter or give away, to be drunk as a beverage, intoxicating liquors upon the day of any election in the township, town or city. This section, as will be seen, does not designate any particular election, or what elections are included within its provisions, and we are therefore compelled to look beyond the section to determine what is meant by, or what elections are included within, the words any election.
It is contended by counsel for appellee that the words mean all legal elections, or all elections authorized or regulated by law, and that we can not look to the other sections of the law to ascertain what was meant by the Legislature in the use of these words.
This theory of construction would give the section a much wider scope than is contended for by counsel for the appellant.
There are many elections authorized and regulated by law upon the day on which they may be held, it is manifest it was not contemplated by this act to prohibit the sale of intoxicating liquors.
The statute (section 4424, R. S. 1881,) provides that the township trustees of the several townships of each county shall meet on the first Monday of June of each year and elect a county superintendent. Such an election is as much an election within the town where the same may be holden as an election for any other county, township, town or city officers, and if we construe the words "any election" to mean any legal election, or election authorized by law for the election of an officer, or accept the words in their ordinary sense, without looking to the other sections of the same act to ascertain their meaning, it would manifestly include the day fixed by law for the election of a county superintendent, and it would constitute a crime to sell intoxicating liquors upon that day within the township, town or city where such election is holden. But we think it was not intended to prohibit the sale of liquors upon the day of such election, and that the statute will not warrant any such construction.
It is contended that statutes relating to criminal offences must be strictly construed, and that we can only look to the particular section defining the offence to ascertain its meaning; that to constitute a crime the act done must come both within the letter and spirit of the language used. This is true in a limited sense; but giving this section a strict construction, primary elections come within both the letter and spirit of the language used. The word "election" is not limited in its definition and meaning to the act or process of choosing a person for a public office by a vote of the qualified electors at the time, place and manner prescribed by law.
The Century Dictionary, vol. 2, defines election to mean:
Rapalje and Lawrence's Law Dictionary gives the phrase "primary election," and defines it to be "A popular election held by members of a particular political party, for the purpose of choosing delegates to a convention empowered to nominate candidates for that party to be voted for at an approaching election."
In Worcester's Dictionary the word "election" is defined as The same author defines the word "primary" to mean "First in time; original; primitive; first."
In Webster's Dictionary the word "election" is defined as meaning " And the same author defines the word "primary" to mean
Under our form of government we have a well defined system of choosing or electing officers regulated by law. There exists an equally well defined and unbroken custom on the part of the various political parties to choose or elect candidates of such parties for the various offices prior to the holding of the election at which they shall be voted for, and the choice made by all the electors of the persons to fill the various offices.
There is chosen first a candidate by the members of each political party for each particular office to be filled, to be voted for at the final election. The respective parties first make choice of candidates, and secondly all of the electors make choice between the various candidates; and the words "primary election" well express the choice made by the respective political parties.
The words "primary election," we may say, are as well understood to mean the act of choosing candidates by the respective political parties to fill the various offices as the word "election" is to mean the final choice of all the electors of the persons to fill such offices. So that the words "any election" clearly include primary elections, and such elections come within the letter of the statute.
The object and purpose of the statute were to prevent elections from being influenced by the use of intoxicating liquors, and to put it beyond the power of any person to secure an election to office by the use or influence of...
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