By the Court, Whittlesey, J.
Upon the argument here, the defendant’s counsel made the following points, w’hich seem to be properly raised by his bill of exceptions: 1. That the act relating to excise, passed in 1845, (Stat. 1845, p. 322,) as to those towns where the majority of the votes was for “ no licence,” was a repeal by implication of the provisions of the revised statutes making the sale of liquor without licence a misdemeanor. The provisions of the act of 1845, it is said, are repugnant to or inconsistent with the enactments of the former law. 2. That the indictment is framed under the act of 1845; and that act being repealed without any saving clause in 1847, (Stat. 1847, p. 305,) the prosecution must fall. 3. That the offence creáted by the act of 1845 is not indictable. It is punishable, as is insisted, only by suit for the penalty.
If the conviction is under the act of 1845, it is clear that the offence is extinguished by the repeal of the statute, and the indictment cannot be further prosecuted. Indeed the contrary of this is not contended for by the counsel for the prosecution. The principle is well settled upon authority. (Butler v. Palmer, 1 Hill, 324, 331.)
If the act of 1845, as to the towns in which it is operative by the prevailing vote of “ no licence,” is a repeal by implication of the excise law of 1830, then this conviction could only have [73]*73been under the act of 1845, and that being repealed, as before mentioned, the effect is to annul the proceedings on this indictment. An examination of these different laws is therefore necessary. Title 9 of chapter 20, part first, of the revised statutes, relates to excise and the regulations of taverns and groceries. (1 R. S. 677.) It declares who shall be commissioners of excise, in the several towns, and gives them discretionary power to grant licences to innkeepers, &c. to sell strong and spirituous liquor and wines to be drunk in their houses, and to grocers to sell such liquors and wines in quantities less than five gallons, but not to be drank in their houses or about their premises. (§§ 1, 4.) It then gives a penalty of $25 for selling any strong or spirituous liquors, or any wines, in any quantity less than five gallons at a time, without having a licence therefor, (§ 15;) and a like penalty for selling any such liquors or wines to be drank in the house, &c. without having obtained a licence as a tavern-keeper. (§ 16.) Other penalties are given in various sections to punish evil conduct in tavern-keepers and grocers. The penalties are to be sued for and recovered by the overseers of the poor of the town, except where special provision is made. (§ 19.) All offences against the provisions of this title are made misdemeanors, punishable by fine and imprisonment. (§28.)
The act of 1845 enables the electors of each town to determine by their votes whether the discretionary power, vested by the revised statutes in the commissioners of excise, to grant licences to grocers and tavern-keepers, shall be exercised in such town or not. If a majority of the electors vote “ licence,” then the power remains with the commissioners of excise, as before; and the title of the revised statutes is unaltered. If a majority of the electors vote for no licence,” the discretionary power which the revised statutes gave to the boards of excise is wholly taken away, and they are prohibited from granting any such licence. (§ 3.) If the act had stopped here, the consequence would have been that so much of title nine as gives power to, or authorizes the boards of excise to grant licences, would have been repealed or suspended quoad, such town. The boards of excise could not have granted any license, and all the [74]*74provisions for the regulation of grocers and tavern-keepers after being licenced would have been simply inapplicable and useless. t There could have been no licenced grocers or tavern-keepers to which they could apply. The provisions of title nine, prohibiting the sale of liquors, and all the consequences of violating those provisions, would have remained vital and unaffected, in full force and operation, and the consequence would have been that every one who sold liquors in such town in quantities less than five gallons at one time would have been liable to a penalty of $25 under the 15th section, and to an indictment as for a misdemeanor under the 28th section of that title. The selling liquor to be drank in the house, &c. would have been a useless qualification of the offence, or one which it would have been unnecessary to take notice of, as the simple act of selling would of itself constitute the offence. It seems to me that this is precisely, or nearly, the result at which the legislature intended to arrive by the passage of the act; and, fearing that they had not indicated such intention with sufficient clearness, they inserted the 5th section of the act of 1845, to make such intention more apparent. By that section they declare that when the electors shall have thus determined that no licence shall be granted, whoever shall sell by retail any intoxicating or spirituous liquors or wines shall be liable to all the penalties imposed by the title of the revised statutes to which I have referred, for selling spirituous liquors or wines without a licence. It seems thus in effect to say that though the said title is repealed or suspended as to the power to licence, it is not to be considered repealed or suspended as to the prohibition to sell without a licence, but leaves that the samé offence, and punishable in the same manner as before. The section uses the phrase selling by retail, instead of selling in quantities less than five gallons as used in the revised statutes, and it uses intoxicating or spirituous liquors, instead of strong or spirituom liquors.
This statute can hardly be said to create a new offence. Selling by retail is quite indefinite, but it is generally understood to mean selling in quantities less than five gallons, as the old [75]*75law defined it. . It may be that the prohibition of the sale of intoxicating liquors may extend to cider and other drinks expressly excepted by the former excise law, (1 R. 8. 682, § 29,) and so far create a new offence; but as to the sale of liquors denominated spirituous, the revised statutes, with their prohibitions, their penalties and their punishments were intended by this act to be kept in force. In regard to the sale of spirituous liquors, the act of 1845 operates as a sort of sliding scale upon the old excise law, in one contingency leaving more and in another less of the old law operative; but the law that is operative, whether more or less, is that of 1830. If this construction of the act of 1845 is correct, it disposes of the questions discussed by the counsel for the defendant. The offence, the indictment and the mode of punishment must be those prescribed by the revised statutes; and no offence would be annihilated by the repeal of the act of 1845, unless for selling cider and other similar liquors not included in the prohibitions of the revised statutes, which is not the offence now under consideration.
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By the Court, Whittlesey, J.
Upon the argument here, the defendant’s counsel made the following points, w’hich seem to be properly raised by his bill of exceptions: 1. That the act relating to excise, passed in 1845, (Stat. 1845, p. 322,) as to those towns where the majority of the votes was for “ no licence,” was a repeal by implication of the provisions of the revised statutes making the sale of liquor without licence a misdemeanor. The provisions of the act of 1845, it is said, are repugnant to or inconsistent with the enactments of the former law. 2. That the indictment is framed under the act of 1845; and that act being repealed without any saving clause in 1847, (Stat. 1847, p. 305,) the prosecution must fall. 3. That the offence creáted by the act of 1845 is not indictable. It is punishable, as is insisted, only by suit for the penalty.
If the conviction is under the act of 1845, it is clear that the offence is extinguished by the repeal of the statute, and the indictment cannot be further prosecuted. Indeed the contrary of this is not contended for by the counsel for the prosecution. The principle is well settled upon authority. (Butler v. Palmer, 1 Hill, 324, 331.)
If the act of 1845, as to the towns in which it is operative by the prevailing vote of “ no licence,” is a repeal by implication of the excise law of 1830, then this conviction could only have [73]*73been under the act of 1845, and that being repealed, as before mentioned, the effect is to annul the proceedings on this indictment. An examination of these different laws is therefore necessary. Title 9 of chapter 20, part first, of the revised statutes, relates to excise and the regulations of taverns and groceries. (1 R. S. 677.) It declares who shall be commissioners of excise, in the several towns, and gives them discretionary power to grant licences to innkeepers, &c. to sell strong and spirituous liquor and wines to be drunk in their houses, and to grocers to sell such liquors and wines in quantities less than five gallons, but not to be drank in their houses or about their premises. (§§ 1, 4.) It then gives a penalty of $25 for selling any strong or spirituous liquors, or any wines, in any quantity less than five gallons at a time, without having a licence therefor, (§ 15;) and a like penalty for selling any such liquors or wines to be drank in the house, &c. without having obtained a licence as a tavern-keeper. (§ 16.) Other penalties are given in various sections to punish evil conduct in tavern-keepers and grocers. The penalties are to be sued for and recovered by the overseers of the poor of the town, except where special provision is made. (§ 19.) All offences against the provisions of this title are made misdemeanors, punishable by fine and imprisonment. (§28.)
The act of 1845 enables the electors of each town to determine by their votes whether the discretionary power, vested by the revised statutes in the commissioners of excise, to grant licences to grocers and tavern-keepers, shall be exercised in such town or not. If a majority of the electors vote “ licence,” then the power remains with the commissioners of excise, as before; and the title of the revised statutes is unaltered. If a majority of the electors vote for no licence,” the discretionary power which the revised statutes gave to the boards of excise is wholly taken away, and they are prohibited from granting any such licence. (§ 3.) If the act had stopped here, the consequence would have been that so much of title nine as gives power to, or authorizes the boards of excise to grant licences, would have been repealed or suspended quoad, such town. The boards of excise could not have granted any license, and all the [74]*74provisions for the regulation of grocers and tavern-keepers after being licenced would have been simply inapplicable and useless. t There could have been no licenced grocers or tavern-keepers to which they could apply. The provisions of title nine, prohibiting the sale of liquors, and all the consequences of violating those provisions, would have remained vital and unaffected, in full force and operation, and the consequence would have been that every one who sold liquors in such town in quantities less than five gallons at one time would have been liable to a penalty of $25 under the 15th section, and to an indictment as for a misdemeanor under the 28th section of that title. The selling liquor to be drank in the house, &c. would have been a useless qualification of the offence, or one which it would have been unnecessary to take notice of, as the simple act of selling would of itself constitute the offence. It seems to me that this is precisely, or nearly, the result at which the legislature intended to arrive by the passage of the act; and, fearing that they had not indicated such intention with sufficient clearness, they inserted the 5th section of the act of 1845, to make such intention more apparent. By that section they declare that when the electors shall have thus determined that no licence shall be granted, whoever shall sell by retail any intoxicating or spirituous liquors or wines shall be liable to all the penalties imposed by the title of the revised statutes to which I have referred, for selling spirituous liquors or wines without a licence. It seems thus in effect to say that though the said title is repealed or suspended as to the power to licence, it is not to be considered repealed or suspended as to the prohibition to sell without a licence, but leaves that the samé offence, and punishable in the same manner as before. The section uses the phrase selling by retail, instead of selling in quantities less than five gallons as used in the revised statutes, and it uses intoxicating or spirituous liquors, instead of strong or spirituom liquors.
This statute can hardly be said to create a new offence. Selling by retail is quite indefinite, but it is generally understood to mean selling in quantities less than five gallons, as the old [75]*75law defined it. . It may be that the prohibition of the sale of intoxicating liquors may extend to cider and other drinks expressly excepted by the former excise law, (1 R. 8. 682, § 29,) and so far create a new offence; but as to the sale of liquors denominated spirituous, the revised statutes, with their prohibitions, their penalties and their punishments were intended by this act to be kept in force. In regard to the sale of spirituous liquors, the act of 1845 operates as a sort of sliding scale upon the old excise law, in one contingency leaving more and in another less of the old law operative; but the law that is operative, whether more or less, is that of 1830. If this construction of the act of 1845 is correct, it disposes of the questions discussed by the counsel for the defendant. The offence, the indictment and the mode of punishment must be those prescribed by the revised statutes; and no offence would be annihilated by the repeal of the act of 1845, unless for selling cider and other similar liquors not included in the prohibitions of the revised statutes, which is not the offence now under consideration.
If however I am wrong in this construction, and the act of 1845 is deemed to create a new offence of selling by retail intoxicating or spirituous liquors or wines, it does not seem to me that it is so inconsistent with the provisions of title nine in regard to the offences created by that title as to operate entirely to repeal it. The chief purpose of the act of 1845 was to enable the towns to determine for themselves whether licences to sell ardent spirits in such towns should continue tobe granted. If licences were not allowed, it was evidently the intention of the legislature to punish the sale without licence. The old law did that by making certain acts of sale offences. If the new law created a new offence of a similar character, it is not so inconsistent with the former enactment as to amount to a repeal of it, and where there is not a clear intention to substitute one act for another both must be maintained.
The count upon which the defendant is convicted contains a statement in regard to the licence election in the city of Brooklyn ; and it charges the defendant with selling by retail (a word used only in the act of 1845) strong and spirituous liquors [76]*76and wines, the latter being the words in .the revised statutes. The count does not conform itself to the .language of either act, but it contains all the facts necessary to be averred in a count under the revised statutes and something more. The additional matters may be disregarded, as surplusage. This was so held in Hodgman v. The People, (4 Denlo, 235.) The count being thus shown to be good under provisions on this subject in the revised statutes, and those pro visions,not having been superseded by the act of 1845, the repeal of that act has no influence upon the case. It is unnecessary to inquire whether an indictment cortld be sustained under the act of 1845. That question was passed upon in Hodgman v. The People, but it was not necessary to the decision of the case. Owing to its having received but a slight consideration it has been again raised in this case, but, as before remarked, it is not necessary to consider it. The application for a new trial must be denied.
And see Yeaton, v. The United States, (6 Cranch, 281, 283;) The Schooner Rachel v. The Same. (6 id. 329;) The United Slates v. Passmore, (4 Doll. 372;) Lewis v. Foster, (N. Hamp. 61;) Palmer v. Coynly, (4 Denio, 377, note b.)