Hubman v. State

Hughes, J.,

(dissenting). I am pnable to yield my assent to the opinion just delivered by Mr. Justice Battle in this case, for the following reasons: It is conceded, and cannot be denied, that the act of March 8th, 1879 (Sec. 4851 of Sandels & Hill’s Digest), provides that manufacturers of alcohol, vinous, malt or fermented liquors can sell the same in original packages without license, provided such original packages do not contain less than five gallons. So far as the sale of all such liquors as alcohol, ardent, malt or fermented liquors are concerned, this act is still in force, and they may be sold in original packages of five gallons without license. It cannot be reasonably supposed that the legislature would allow the sale of alcohol, whisky, and brandy in original packages of five gallons without license, and require that manufacturers of wine should pay a license tax before they can sell. Though there may be dicta to the contrary, I am of the opinion that, when the acts of the legislature governing the sale of liquors and wines in this state are construed together, as they should be, it will be found that the act above referred to was not intended to be, and was not, repealed, so far as the sale of wine is concerned. Different statutes upon the same subject must be construed i?t pari materia. The repeal of statutes by implication is not favored.

In Bowen v. Lease, 5 Hill (N. Y.), 221, it is held that “where two statutes are passed, inconsistent with and repugnant to each other, the one last enacted will operate as a repeal of the other by implication. Otherwise, if they be not plainly repugnant, unless in the one last enacted some notice is taken of the other indicating an intent to repeal it; for the law does not favor the repeal of statutes by .implication.”

In Chesapeake & O. Canal Co. v. Railroad Co. 4 Gill & Johnson, (Md.) 1, it is said : “Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them as best to answer that intention, which may be collected from the cause.or necessity of making the act, or from foreign circumstances; and, when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute. That, therefore, which is in the letter of the statute, is sometimes not within the statute, not being within the intention of the makers.” “If laws and statutes seem contrary to one another, yet, if, by interpretation, they may stand together, they shall stand ;” and where two laws so far disagree, or differ, as that, by any other construction, they may both stand together, the rule, “Leges posteriores priores contrarias abrogant,” does not apply, and' the latter is no repeal of the former. It is laid down as an established rule, in 19 Yin. Abr. 525, PI. 132, that “repeals by implication are things disfavored by law, and never allowed of, but when the inconsistency and repugnancy are plain and unavoidable, for these repeals carry along with them a tacit reflection upon the legislators, that they should ignorantly, and without knowing it, make one act repugnant to and inconsistent with another ; and such repeals have ever been interpreted to repeal as little of the preceding law as is possible,” etc.

In Brown v. County Commissioners, 21 Pa. St. 42, 43, the rule is laid down thus: “When two statutes are so flatly repugnant that both cannot be executed, and we are obliged to choose between them, the later is always deemed a repeal of the earlier. * * * * * But whenever two acts can be made to stand together, it is the duty of a judge to give both of them full effect. Bven where they are seemingly repugnant, they must, if possible, have such a construction- that one may not be a repeal of the other, unless the latter one contains negative words, or the intention to repeal is made manifest by some intelligible form of expression. That the law does not favor repeals by implication is a very old rule.”

,It is manifest that the policy of our legislation has been, and is, to encourage the growth of grapes, and the manufacture of wine therefrom. It is preposterous and inconsistent to suppose that the general assembly have discriminated against wine, and encouraged the manufacture and sale of ardent spirits. Of the two, it is the consensus of opinion that the manufacture and sale of ardent spirits is a much greater evil than the manufacture and sale of wine. I am of the opinion that the laws of this state allows the sale of wine in original packages of five gallons without license.

In no former .case in this court has the question of the right to sell wine in five-gallon original packages, without license, been considered, and the opinions heretofore delivered do not cover, or conclude the court upon, this question.

Riddick, J., concurs in the dissent.