The indictment is founded upon the statute. Acts 1872-`73, ch. 78. The counsel for the defendant insisted on the argument that this act was repealed by the statute (Acts 1876-`77, ch. 86), and that the latter act was repealed by the statute (Acts 1885, ch. 120, sec. 60). He also insisted that the act first cited is a private act and ought to have been set forth or in an appropriate way referred to in the indictment. He further contended that if the act is a public one then it is repealed by The Code, sec. 3867.
It is not at all certain that the Act of 1876-'77 repealed that of 1872-'73, but if it be granted that it did, the Act of 1885 plainly (602) repealed that of 1876-'77, and that of 1872-'73 remains in force. The Act of 1885, sec. 60, by its terms and effect repealed all laws and clauses of laws in conflict with it, "and all laws heretofore passed chartering or amending the charter of the town of Morganton." The statute of 1872-'73 was in no respect in conflict with it, nor did it charter or amend the charter of the town of Morganton; it had no reference *Page 507 or application to that town as a corporate organization; it applied to and embraced an area of territory that embraced the town and more than that, and its provisions were to be executed in certain respects by certain designated county officers, without reference specially to the officers and authorities of the town as such.
We think, also, that the statute of 1872-'73 is not a private law. Private statutes are such as relate to, concern, and affect particular persons, or something in which individuals or classes of persons are interested in a way and degree peculiar to them and not common to the whole community. Public statutes are such as relate to, concern, and affect the public generally, the community at large, without distinction in any respect; they operate alike and in the same degree upon all individuals and classes of persons and their interests, subject to the law, where they are in the same condition and circumstances. And this is so whether the law applies to the whole State or to a locality or localities in the State. It is the quality of public, general, and common right or purpose that makes the statute a public one. I Kent Com., 459; Potter's Dwarris on Statutes, 52, 53.
The statute under consideration is a public one, applying to and operating in a particular locality, and affecting everybody alike who may reside, or go, or have interest there. It has one feature common to most private statutes — it is local, but all local statutes are not private ones; for example, such as create and regulate counties are local in an important sense, but they are not private. In most, if not all, other respects this statute has the essential qualities of a public law. It confers no special benefits upon individuals or classes of persons as distinguished from others; it applies to all alike, in like circumstances. The violation of its provisions when it takes effect is (603) made indictable and punishable by fine or imprisonment, or both, in the discretion of the court; it applies to all persons who may offend against it, whether they reside in the particular territory embraced by it or not; it is to be enforced like other public laws and for the common good. It may be said that it is intended to benefit specially a locality and those residing there, but this may be said of all local laws. While it is intended to have a wholesome local effect, it does not apply to individuals or classes, but to the whole community, and is likewise intended to promote the common good without distinction in any respect. S.v. Cobb, 18 N.C. 115; Shepherd v. Comrs., 90 N.C. 115.
The statute in question was not brought forward in The Code, and the counsel for the defendant insisted that if it is a public law it was repealed by the statute (The Code, sec. 3876), which provides "that allpublic and general statutes not contained in this Code are hereby repealed, with the exceptions and limitations herein mentioned." This *Page 508 contention is without foundation, because The Code, sec. 3873, expressly provides that "no act of a private or local nature . . . shall be construed to be repealed by any section of this Code." As we have seen, the statute is public and local, and is therefore not repealed.
Nevertheless we are of opinion that the court ought to have arrested the judgment, because the indictment does not sufficiently charge an offense under the statute, or indeed any offense. It provides that in a contingency specified in it, depending on a popular vote, to be taken as therein directed, it shall be unlawful to sell spirituous liquors, except in a quantity specified, within two miles of the courthouse in the town of Morganton, and it is made a misdemeanor to make any such sale, punishable by fine or imprisonment, or both, in the discretion of the court.
The indictment does not allege that an election was held as required by the statute, or that the contingency happened upon which it became unlawful and indictable to sell spirituous liquors within the (604) area of territory specified. Such omission is fatal. It must appear in the indictment itself that an offense is charged therein. This is essential to enable the party indicted to make his defense, and the court to proceed to trial and judgment, in case of conviction. It must appear in the record that the court has jurisdiction of the offense charged, and to this end it must appear in the indictment that an offense is charged.
The court, seeing the indictment in this case, could not determine that an offense was committed under the statute mentioned or at all. Indeed, no offense is charged, for it was not unlawful to sell the spirituous liquors as alleged unless the contingency had happened upon which it became unlawful to sell. The court could not take judicial notice that an election had been held by the authorities designated in the statute — that a majority of the votes cast were in favor of "prohibition," and that such result was duly certified so that the sale of spirituous liquors became, within the area of country specified, a criminal offense. These facts, if they existed, as it seems they did, or the substance of them, ought to have been averred in the indictment and proven on the trial. S. v. Cobb, supra;S. v. Loftin, 19 N.C. 31; S. v. Eason, 70 N.C. 88; S. v. Sloan, 67 N.C. 357.
As the Court could not see in the record that an offense was charged against the defendant, no judgment could be properly given against him. Judgment must therefore be arrested.
There is error, and to the end that the same may be corrected, let this opinion be certified to the Superior Court according to law. It is so ordered.
Error. Reversed. *Page 509 Cited: S. v. Wallace, 94 N.C. 828; S. v. Sorrell, 98 N.C. 740; S. v.Cooper, 101 N.C. 688; S. v. Moore, 104 N.C. 717; S. v. Pendergrass,106 N.C. 667; S. v. Witter, 107 N.C. 795; Durham v. R. R., 108 N.C. 401;S. v. Tenant, 110 N.C. 612; S. v. Thomas, 118 N.C. 1226; Caldwell v.Wilson, 121 N.C. 458; S. v. Jones, ibid., 619; S. v. Newcomb, 126 N.C. 1107;R. R. v. Lumber Co., 132 N.C. 651; S. v. Holder, 133 N.C. 713; S.v. Holloman, 139 N.C. 646; S. v. Piner, 141 N.C. 763; Cole v. Comrs. ofPitt, 146 N.C. 585; S. v. Swink, 151 N.C. 727; Yarborough v. Park Com.,196 N.C. 291.
(605)