Seifried v. Commonwealth

101 Pa. 200, 1882 Pa. LEXIS 236

• Court: Supreme Court of Pennsylvania
• Decided: October 5, 1882
• Status: Published

Opinion

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special prohibitory statute, except its penal provision, is still in force; and it is claimed that said provision is repealed and supplied by the general statute of April 12th 1875.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 offender sold without license.

The Act of 1875 declares that none of its provisions shall authorize the sale of intoxicating liquors in any municipality having special prohibitory laws, and in the entire Act there is no sign of intendment to repeal the vindicatory parts of such laws. Sometimes it has been held that a general affirmative statute will repeal a prior local one upon the same subject. This is not-the rule. To effect such result, the repugnancy must be strong, or the inconsistency irreconcilable. There is no repeal where the intendment of the general is not to supply the local. A general statute, without negative words, cannot repeal a previous statute which is particular, even though the provisions of one be different from the other. “ It is against reason to suppose that the legislature in framing a general system for the state, intended to repeal a special Act which the local circumstances of one. county had made necessary: ” Brown v. Commissioners, 21 Pa. St. 37; Bounty Accounts, 70 Pa. St. 92. Accordingly, it was decided that the 6th section of the Act of 1872, P. L. 843, relating to the sale of intoxicating liquors in the county of Allegheny, was not repealed by the 3d section of the general Act of 1875, although said sections widely differ as to the amounts to be paid for licenses for hotels, inns and taverns, and the uses of the moneys received therefor: Kilgore v. Commonwealth, 94 Pa. St. 495. From the ruling in that case it follows that the special Act for the township of Derry is not repealed.

An indictment must be sufficiently precise to protect the defendant from a second prosecution for the same offence. Where the offence is statutory, and can bo committed only in a certain municipal division, Avliich is less than the county within the jurisdiction of the court, the name or description of such division, and the fact that the offence was committed therein, must be set forth in the indictment. This conviction would not be a bar to an indictment charging the defendant with having unlawfully sold spirituous, vinous, malt or brewed liquors, for drinking purposes, in the township of Derry, in the county of Westmoreland, contrary to the special statute: Commonwealth v. Keenan, 10 Phil. 194; State v. Hanly, 25 Minn. 429; Botto v. State, 26 Miss. 108.

The defendant’s point should have- been affirmed.

Judgment reversed, and the record, with this opinion setting forth the causes of reversal, is remanded to the Court of Quarter Sessions of Westmoreland . county for further proceeding.