The indictment charges the defendant with having unlawfully retailed and sold to a person specified "spirituous liquor by a measure less than five gallons, to wit, by the quart, the said E. C. Newcomb not having then and there a license to sell and retail spirituous liquors by the measure last aforesaid," etc. The defendant pleaded not guilty.
The jury found, by their special verdict, that the defendant did, in August of the present year, sell a quart of liquor to the person specified; that at that time he had a license dated 7 July, 1890, authorizing him to carry on the business of "liquor dealer, for selling in quantities of one quart up to five gallons, at his place of business at Odell Building, South Elm Street, for the period commencing 1 July, 1890, and ending 1 January, 1891." This license was signed by the sheriff of said county and countersigned by the register of deeds thereof, and was in all respects *Page 618 (901) sufficient in form. The place thus specified is situated within the city of Greensboro. upon the special verdict the court directed a verdict of not guilty to be entered, and gave judgment thereupon in favor of the defendant. The Solicitor for the State excepted, and appealed to this Court, insisting that the license was void because granted to sell spirituous liquors in said city without permission first granted by the board of aldermen thereof, as prescribed and required (as contended) by the charter of that city (Pr. Laws 1889, ch. 219, sec. 75). It is conceded for the State that if the license put in evidence on the trial by the defendant was valid, then he was not guilty. We are of opinion that it was in all respects valid and authorized by the statute (Laws 1889, ch. 216, sec. 32), which, among other things, provides that "every person, company or firm for selling spirituous . . . liquors . . . shall pay a license tax semiannually in advance, on the first day of January and July, as follows: First, for selling in quantities of five gallons or less for each six months, to be collected by the sheriff," etc. The same section authorizes the county commissioners, as prescribed, to "issue an order to the sheriff to grant a license so to sell," "except in territory where the sale of liquors is prohibited by law."
The charter of the city of Greensboro (the statute Pr. Laws 1889, ch. 219, sec. 75) provides "that it shall not be lawful for the commissioners of Guilford County to grant any license to retail spirituous liquors within the limits of the city without permission first obtained from the board of aldermen in being at the time of the application to the county commissioners, and if any license shall be granted without permission in writing, attested by the clerk of the board, and exhibited to the county commissioners, and filed with the clerk of the board of county commissioners, the same shall be utterly void," etc. It (902) is contended for the State that selling such liquor by the quart is retailing the same within the meaning of the statutory provision just recited, and, therefore, the license relied upon by the defendant was void, inasmuch as it was granted by order of the county commissioners of Guilford without the permission of the board of aldermen of the city of Greensboro.
We think this is a clear misapprehension of what is meant by retailing spirituous liquors in the above and other statutes. *Page 619
The statute (Code, sec. 1076) provides that "if any person shall retail spirituous liquors by the small measure, or any other manner than is prescribed by law, he shall be guilty of a misdemeanor, and shall be fined or imprisoned, or both, in the discretion of the court." The statute (Code, sec. 3701) prescribing how a license to retail spirituous liquors shall be granted, provides that "every person desiring to sell spirituous or malt liquors, wines, cordials or bitters, in quantities less than aquart, shall, before engaging in said sale, file his petition, stating the place and house in which he proposes to retail, and obtain an order to the sheriff from the board of county commissioners of the county to grant him a license to retail at that place, which order they shall grant to all properly qualified applicants," etc. This is the statute, and the only one that prescribes what constitutes retailing by the small measure as contemplated by the statute (Code, sec. 1076), and it is the license to thus retail that the charter of the city of Greensboro forbids the county commissioners of the county of Guilford to direct to be issued without the permission of the board of aldermen of that city granted in the way prescribed. Muller v. Comrs., 89 N.C. 171; S. v. Brittain, ib., 576. The statute (Code, sec. 3701) has not been repealed or modified. The several revenue laws passed by the Legislature since that statute was enacted repeal preceding similar laws, including chapter 55 of The Code, only so far as the preceding ones referred to are inconsistent (903) with subsequent ones. It will be found that none of subsequent date repeal, in terms or by implication, the statutory provision last above recited. License to retail spirituous liquors must be granted now as heretofore.
The statute (Laws 1889, ch. 216, sec. 32), which imposes a tax of $50 for the license to sell spirituous liquors for six months in quantities of five gallons and less, does not affect the statute above cited, defining and regulating the sale of such liquors by the small measure; it only has the effect to make the tax for the license the same in amount for retailing as for selling by the quart and not exceeding five gallons. Hence, it is provided in the section last cited that "no license taken out under this section shall authorize any sale or any greater or less quantity than specified in said license."
The license in question did not purport to grant the defendant the right to retail spirituous liquors in the city of Greensboro, nor did he so retail, so far as appears from the record. The county commissioners had authority to direct that a license be granted to him to sell spirituous liquors, by a measure not less than a quart nor greater than five gallons, in that city, and this without permission of its board of *Page 620 aldermen. They did not have authority to direct a license to be granted to him to retail such liquors there without such permission, nor did they do so. The license in question is, therefore, valid.
Affirmed.
Cited: S. v. Edwards, 113 N.C. 654.
(904)