State v. Johnson

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J. (after stating the facts as above).
• Citation: State v. Johnson, 170 N.C. 685, 86 S.E. 788 (N.C. 1915)
• Decision Date: 03 November 1915
• Docket Number: 266.
• Parties: STATE v. JOHNSON.

86 S.E. 788

170 N.C. 685

STATE v. JOHNSON.

No. 266.

Supreme Court of North Carolina

November 3, 1915

Appeal from Superior Court, Cumberland County; O. H. Allen, Judge.

James H. Johnson was convicted of unlawfully selling wine in Cumberland county, and he appeals. No error.

Where a general and a special statute relating to the same subject are necessarily inconsistent, the special statute will prevail.

Defendant was charged in the recorder's court with unlawfully selling wine, upon the following affidavit:

"A B. Breece, being duly sworn, complains and says, upon information and belief, that at and in said county, and in Rockfish township, on or about the 12th day of December 1914, J. H. Johnson did unlawfully, willfully, and feloniously violate the law by selling less than two gallons of intoxicating wine, to wit, one gallon, to Charlie Perry, and said Charlie Perry paid said J. H Johnson $1.25 for same, contrary to the form of the statute, and against the peace and dignity of the state.

A. B. Breece.

Subscribed and sworn to before me this 8th day of January, 1915.

C. C. Howard,

Clerk of the Recorder's Court of

Cumberland County."

He was arrested under a warrant issued upon the affidavit, and tried in the recorder's court, where he was convicted, and appealed to the superior court.

"Chapter 125 of the Laws of 1903, as amended by chapter 800 of the Laws of 1905, and chapter 743 of the Laws of 1907, is 'An act to prohibit the manufacture and sale and the shipping into Cumberland county of spirituous, vinous or malt liquors.' Originally it prohibited the sale of less than five gallons of wine, but this was reduced by the act of 1905 to two gallons. Section 1 of the act reads as follows: 'That it shall be unlawful for any person, firm or corporation to rectify, manufacture, sell or otherwise dispose of for gain any spirituous, vinous, or malt liquors, or intoxicating bitters within the county of Cumberland: Provided, that wines and ciders may be manufactured and sold on the premises where the fruits, grapes or berries are grown in packages containing not less than two gallons per package; but no wine or cider shall be drunk upon the premises where sold, nor shall the package containing the same be opened on said premises, nor shall it be lawful to sell * * * any wine or cider to an unmarried infant.'

The act prohibiting the manufacture and sale of intoxicating liquors in this state has a proviso, which reads as follows: 'Provided further, that wines and ciders may be manufactured or made from grapes, berries or fruits, and wine sold at the place of manufacture only, and only in sealed or crated packages containing not less than two and a half gallons per package; but no wine, when sold, shall be drunk upon the premises where sold, nor shall the package containing the same be opened on said premises.'

The repealing clause in the said act forbidding the manufacture and sale of intoxicating liquors in the state (section 7, c. 71, of the Laws passed at the extra session of 1908) and the Search and Seizure Act (section 8, c. 44, Laws of 1913) are the same, namely: 'That all laws or parts of laws in conflict with this act be and the same are hereby, to the extent of such conflict, repealed: Provided, however, that nothing in this act shall operate to repeal any of the local or special acts of the General Assembly of North Carolina prohibiting the manufacture or sale or other disposition of any of the liquors mentioned in this act; but all such acts shall continue in full force and effect and in concurrence herewith; and indictment or prosecution may be had either under this act or any special or local act relating to the same subject.' The latter act contains the following additional proviso: 'Provided, further, that this act shall not in any way repeal or modify chapter seventy-one of the Public Laws of North Carolina of the extra session of one thousand nine hundred and eight.' "

The court charged the jury that the prohibition act of Cumberland county was repealed by the general law forbidding the sale of liquor in the state, and if the jury found that defendant had sold two gallons of wine, whether in one package or in two packages of one gallon each, they would return a verdict of guilty. He admitted selling two gallons, but in one package. The jury convicted him, and he appealed to this court.

Sinclair, Dye & Ray, of Fayetteville, for appellant.

T. W. Bickett, Atty. Gen., and T. H. Calvert, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above).

The defendant contends that the Cumberland act, as we will call it, was not repealed by the general prohibition law, because of the proviso, which excepts it, with other similar and local statutes, from its operation, and, this being so, he could not be convicted under the charge, as it was drawn under the Cumberland act, and not under the general state law. We do not so understand the affidavit. It charges him with unlawfully selling less than two gallons of intoxicating wine, that is, one gallon, to Charles Perry, for which he paid $1.25, "contrary to the form of the statute, and against the peace and dignity of the state." This concludes against any and every statute, especially those of a public and general nature, and the Cumberland statute is not mentioned. But, if this were not so, it would be material only if the latter act had not been repealed by the general law, and he had sold not less than two gallons. We are of the opinion that there was such a repeal of the Cumberland act.

A general law will not be so construed as to repeal an existing particular or special law, unless it is plainly manifest from the terms of the general law that such was the intention of the lawmaking body. A general later affirmative law does not abrogate an earlier special one by mere implication. Having already given its attention to the particular subject, and provided for it, the Legislature is reasonably presumed not to intend to alter the special provision by a subsequent general enactment, unless that intention is manifested in explicit language, or there be something which shows that the attention of the Legislature had been turned to the special act, and that the general one was intended to embrace the special cases within the previous one, or something in the nature of the general one making it unlikely that an exception was intended as regards the special act. The general statute is read as silently excluding from its operation the cases which have been provided for by the special one. The fact that the general act contains a clause repealing acts inconsistent with it does not diminish the force of this rule of construction. Endlich, Int. Stat. 223 et seq.; Montford v. Allen, 111 Ga. 18, 36 S.E. 305.

But here there is a special reference to "local and special" statutes, relating to the sale of liquor, and for the reason that the Legislature intended to exclude the inference that by repealing all conflicting statutes it was intended also to abrogate those which were in harmony with the purpose of the general law, and therefore could be enforced concurrently with it. There were many such laws covering nearly the entire area of the state, such as local laws prohibiting the sale of liquor within certain distances of schoolhouses, churches, and other designated places, and also laws prohibiting the sale of liquors, excepting wine in quantities larger than 2 1/2 gallons in certain counties or other localities of the state. It will be seen that the proviso saves from the operation of the act only those local or special laws which prohibited the manufacture or sale or other disposition of any of the liquors mentioned in the body of the act, and not which permitted the sale in any quantity by excepting wines in prescribed quantities, but it was thought wise and expedient, as a new policy of the state, to have a minimum quantity below which no wine should be sold, applicable to all parts of the state, except in those localities where a larger minimum was provided for; it being considered that, as those local acts still further restricted the sale of liquor, it was consistent with the general plan of prohibition for them to remain in force and effect, and this same reason would, of course, apply where there was an absolute prohibition without any saving clause. This view is greatly strengthened, we think, by the words "in concurrence herewith." The word "concurrent," in one or more of its senses, implies pursuit of the same course, or...