Zarresseller v. the People

• Court: Supreme Court of Illinois
• Citation: 7 Peck 101,17 Ill. 101,1855 WL 5510
• Parties: ANTON ZARRESSELLER, Plaintiff in Error,v.THE PEOPLE, Defendant in Error.
• Decision Date: 30 November 1855

17 Ill. 101
1855 WL 5510 (Ill.)
7 Peck (IL) 101

ANTON ZARRESSELLER, Plaintiff in Error,
v.
THE PEOPLE, Defendant in Error.

Supreme Court of Illinois.

November Term, 1855.

THIS indictment was tried before PARRISH, Judge, (a jury being expressly waived,) at the September term, 1855, of the Marion Circuit Court. The defendant was found guilty. Motions for a new trial and in arrest of judgment were overruled.

Judgment was rendered for a fine and for costs. The opinion of the court furnishes a statement of the case.

G. KOERNER, for Plaintiff in Error.

J. S. ROBINSON, State's Attorney, for the People.

SKINNER, J.

Anton Zarresseller was indicted in the Marion Circuit Court for selling spirituous liquor without license.

The indictment charges that Zarresseller, on the fourth day of April, 1855, at the county of Marion, one gill of spirituous liquor, the same being a less quantity than one quart, to one Tracy, unlawfully did sell.

The defendant appeared and moved the court to quash the indictment, on the ground that the act entitled “an act for the suppression of intemperance, and to amend chapter 30 of the Revised Statutes,” approved February 12, 1855, had repealed

[17 Ill. 102]

the laws authorizing the granting of licenses to retail spirituous liquors, and the penalties for selling without such license. And also, for the reason that the indictment did not describe the kind of liquor sold, and did not conclude in the language of the constitution.

The first question is, did the act of 1855 repeal the laws regulating the retail of spirituous liquors, or any part of them? According to the principles laid down in the case of Sullivan v. The People, 15 Ill. 233, the laws authorizing the granting of licenses to sell spirituous liquors, and the laws providing penalties for selling without license compose one system, are dependent upon each other, and the repeal of the one would operate as a repeal of the other. If, then, the act of 1855 repealed the statutes authorizing the granting of licenses, it also repealed the penalties provided for selling without license. But we do not regard the act of 1855, as operative to affect these laws in any manner whatever.

The thirty-sixth section of the act of 1855, provides, that “all laws and parts of laws inconsistent with this act, shall be repealed when this act goes into operation; provided, that all prosecutions which shall have been commenced at the time this act goes into operation, shall be carried on to final judgment and execution as if this act had not been passed; provided, all laws authorizing the issuing or granting of licenses to sell spirituous or intoxicating or mixed liquors, shall be repealed from and after the date of the passage of this act.”

The thirty-ninth section of the act provides that, “The foregoing provisions of this act shall take effect on the first Monday of July next; provided, if a majority of the ballots to be deposited as hereafter provided, shall be against prohibition, then this act shall be of no force or effect whatever.

The act then provides for submitting the adoption of the act to the people, to be determined by vote, and the mode of determining upon its adoption or rejection by the people. These two sections are apparently conflicting and repugnant; and it is insisted that the last proviso of the thirty-sixth section repeals the laws authorizing the granting of licenses, and providing penalties for selling without license. It is the duty of the court to construe these two sections together, and in...