The conviction in this case cannot be upheld. Nine of the counts in the indictment were framed under the late prohibitory statute, which has been held, by the court of appeals, unconstitutional in respect to those parts of it prohibiting the sale of intoxicating liquors, and the penalties which it annexes to the violation of those provisions. So'far as the conviction is founded on those counts, it is clearly illegal, as no valid judgment could be given upon it. At the time of the trial, the question of the validity of the act had not been adjudicated by the court of appeals. The charge of the court below, that the law was constitutional, was, nevertheless, erroneous, according to the exposition since given to it by the court of appeals.
It is quite apparent that the case was tried upon the counts under the statute of 1855, as the bill of exceptions does not show that any other law had been violated. It states that it was proved on the trial that brandy, gin and whiskey had been purchased at the defendant’s house at different times, but it does not appear in what quantities, nor whether in quantities under five gallons. Assuming, therefore, that the excise laws, in force at the time of the passage of the act of April, 1855, are still in force, it was an error in the court below to instruct the jury that the provisions of the law upon which the indictment was founded, were constitutional; because much the largest portion of the counts are founded upon a law since declared unconstitutional; and we have seen that the evidence would apply to that law, and not to the excise laws in existence at the time of its enactment.
Whether those excise laws, or such of them as are inconsistent with the late prohibitory enactment, are still in force, it is not necessary to decide in this case. Upon that question there are differences of opinion.
It was held by the court of sessions in Monroe county, in April last, in the case of The People agt. Breakey, that by force of the 24th section of the law of 1855, the previous excise laws, or such provisions of them as were inconsistent with that law, were repealed. The only fallacy in the reasoning of the *81county judge iiuthat case, in an able opinion delivered by him on the occasion, (if any fallacy exists,) which I have discovered, consists in regarding the act of 1855, for the purposes of the question, whether the previous excise laws were inconsistent with that act, as constitutional. If he was wrong in that, the error was fatal to his conclusion.
It might, I think, be contended with much plausibility, that there can be no such inconsistency between the provisions of a statute, valid in its creation, and the provisions of one subsequently enacted, which never had any validity by reason of its unconstitutionality, as to invalidate the former.
The conviction in this case, however, is reversed, upon the other grounds mentioned.