
    Dyer vs. The State.
    Nuisance. Retailing liquors defined. The acts of 1779, c. 10, creates "the of. fence'' of unlicensed retailing- of spirituous liquors, subjecting persons guilty thereof to a penalty of one hundred and twenty-five dollars, — and, defining- it to be — 1. The selling of them in smaller quantities than aqua:t. — 2. The selling of them by the quart or greater quantity, to be drunk at the place where sold.
    SAME,,, Same — made indictable. The acts of 1811, c. 13, and 1823, o. 33, make this offence indictable.
    SAfylE. Repeal. These latter acts are repealed by the same acts of 1831, c. 80 and 1832, c. 34.
    •.SAME. Repealing laws not revived. The repeal of the act of 1831 by the act of of 1838, c. 120, does not revive thejacls of 1811 and 1823, because those acts are also repealed by the act of 1832, which is not repealed by the act of 1838, the rule being that — “When a statute Í3 repealed by several acts, a repeal of one or two of them, and not of all, does not revive the first statute.” 12 R. 7.— Dwarris on Statutes, 676,
    SAME. Same. Repealed laws may be referred to when. But if the acts of 1811 and 1823 were the only laws which define the offence of retailing, they,though repealed, might be referred to, to ascertain what is meant by the "offence of retailing,” prohibited, but not defined, by the aci of 1838. For it is a rule that —When it becomes necessary to refer to a repealed statute in order to define an existing offence, it may well be done.
    "SAME. Same. License laws repealed. The act of 1838, c. 120, however, operates virtually as a repeal of all laws authorising a license to retail spirituous liquors; because it makes all retailing, without exception, a misdemeanor, indictable and punishable by fine at the discretion of the Court.
    SAME. Penalty of §125. But, it seemst that the actof 1779 is not repealed,so far as it inllicts the penalty of §125 upon persons selling by the quart or greater .quantity, to be drunk at the place where sold. Moore vs. The State, 9 Yerger» 253, recognized.
    STATUTES. Acts relate to their passage. When an act has been signed by the Speakers of both Houses of the Legislature, as it must be before it becomes a law, — Con?t. ayt. 2, s. 18, — it fakes effect from its passage by relation; and if it be a repealing statute, it avoids an act done by authority of the repealed law# in the interval between its passage and signature.
    On the 8th of February, 1838, the Grand Jury of David<son indicted the defendant, for that, “with force and arms in the county aforesaid, on the 7th of February, 1838, unlawfully, a certain gill of spirituous liquors he did sell by retail to a certain Joseph Ryan, contrary to the form of the statute,” &c.
    At May term of the Court, the defendant appeared and pleaded not guilty, and issue was thereupon joined, and he was put upon trial.
    The evidence was—
    
      That the defendant, on the 7th of February, did sell liquors in a less quantity than a quart in said county, and received pay therefor; that on the morning of the 27th of January, 1838, the defendant had applied to the clerk of the County Court of Davidson for a license to retail liquors in the county; that the clerk informed him that he had understood that the Legislature had passed an act prohibiting such licenses; that he would take his name, and the day and time of his application, — and if allowed to issue such a license, he would consider the application as made, and would grant him one; that when said application was made, though the act in question had been passed by both Houses of the Legislature, it had not been signed by either of the Speakers: that subsequently, the clerk refused to grant the license; — that on the 6th of February, 1838, the County Court of Davidson had granted the defendant a license to keep tavern in said county, and sell liquors therein, for the term of one year from the 6th of February, 1838, which license was granted under the Act of 1823, and the previous acts on the subject of licensing taverns.
    The license referred to was read in evidence, as follows:
    “State of Tennessee, Davidson County Court,
    February Term, 1838.
    Whereas Isham Dyer has this day prayed, and obtained an order of the said County Court to keep an ordinary at his now dwelling-house in this county. These are therefore to license you, the said Isham Dyer, to keep an ordinary at your now dwelling-house in this county, for and during the term of one year, from the date hereof; you, the said Isham Dyer, in all- things complying with the directions-of the Act of 'Assembly, in such case made and provided. Witness Smith Criddle, Clerk of our said Court, at-office, the 6th day of February, 1838;”
    SMITH CRIDDLE.
    It was also proved that the defendant’s house was situate in Nashville, and,,was¡a large three, story brick ¡house; and this--.was,-all. the evidence-in the, case.
    The Court, Rucijs Judge, charged the ¡Jury, that the -defendant had no right to retail, as a -licensed, retailer, from what passed between him and the clerk of the county court; for even if it was clear that the defendant was entitled to a license under the act of 1831, still he could not retail without actually taking the license; that the law dated on the 26th of January, was in force on the 27th, though not signed until after the license was applied for that day; and so the defendant was not entitled to take a license on that day under the act of 1831; that the license granted to the defendant by the County Court on the 6th of February, was void; and constituted no defence for him in the case, the act of 1838 having abolished all tippling-houses, except such as had been licensed before its passage: that (as to the principle insisted on, that the Jury were judges of the law as well as of the facts, and should find their verdict according to their own construction of the law, if they differed from the Court,) the jury are the exclusive judges of the facts; not so of the law. It is the duty of the jury to respect the opinion of the Court upon questions of law, and to be governed by it, unless they should think the Judge wrong; — in that case, it was their privilege to find their ver-’ diet according to their opinion of the law; that if ihé Judge erred in his view of the law, his error could be reversed in the Supreme Court; whereas if the Jury took upon themselves to decide the law against his charge, it could not be reversed if wrong.
    December 13
    The counsel for the defendant requested the Court to charge the jury, that if they entertained a reasonable doubt as to the meaning of the statute in this case, they ought to acquit the defendant. The Court refused so to charge.
    The jury found the defendant guilty; and his motion for a new trial being over-ruled, the Court fined him ten dollars, and gave judgment against him for the cost's. From all which he prosecutes this appeal in the nature of a writ of eiror.
    Fletcher for the plaintiff in error.
    I. We take several exceptions to the charge of the Circuit Judge, and aver that he erred when he instructed the Jury:
    1. That the license granted by the County Court of Davidson oh the 6th of February 1838, was void, and constituted no defence for Dyer.
    
      2. And' that he erred when he refused to tell the Jury that the said license was a sufficient authority to authorise Dyer to sell a gill of spirituous liquors.
    1. — It is contended by the State, and was so declared by the Judge, that the act of 1838, repeals all laws authorising the retailing of liquors in a less quantity than a quart, and all laws authorising the granting of licenses to Tavern Keepers.
    These positions are denied by the counsel for the plaintiff in error. We maintain that the act of 183S repeals the whole of the act of 1831, c. 80, and “so much of the 4th section of the act of 1S35-6, c. 14,-as relates to the licensing, and increasing the tax on, those who retail spirituous liquors.
    2. It is further contended by the State — and was so ruled by the Circuit Judge, that the act of 1837, c. 38, repeals all laws which tax tavern-keepers, or which require them to take a license. Now, a reference to this last mentioned act, will show that it refers expressly to a particular act, and no other. It provides that so much of an act passed 5th Feb. 1836, entitled “an act setting forth the property, real and personal, and the privileges and occupations liable to taxation in this State,” as imposes a tax on tavern keepers, or as requires such persons to obtain licenses, be and the same is repealed. The acts, then, of 1838 and 1837, apply expressly to the acts of 1831, c. 80, and 5th Feb. 1836, and 1832, c. 34.
    
    The repeal of the acts of 1831 and 1832, and 5th Feb. 1836, leaves the acts of 1811, c. 113, and 1823, c. 3$, in full force. And by the provisions of those statutes, tbecounty courts are fully authorised to grant licenses to tavern keepers. And having granted a license to Dyer to keep an ordinary, that license was not void, and did constitute a good defence for him.
    The court will see, by reference to the statute of 1798, c. 10, § 2, and 1832, c. 34, § 1, that tavern keepers, who have obtained licenses, are fully authorised to retail spirituous liquors in the very smallest quantities.
    3. It is further contended by tbe State, that the 2d section of the act of 1838, c. 120, makes it an indictable offence in any person, and under all circumstances, to retail spirituous liquors.
    But such is not the meaning of the section. By reference to the act of 1811, c. 113, the court will see that the last mentioned acts make it an indictable offence to retail liquors without license; and limit the fine, upon conviction, to a sum not less than one nor more than five dollars. Now, a bare inspection of the second section of the act of 1838, will show that that section is added for the express purpose of authorising the judge, upon conviction, to fine the defendant “at the discretion of the court, as in other cases of misdemeanor, and to repeal that portion of the second section of the act of 1815, c. 203, which limits the fine to five dollars.” It is proper here to remark, that there is no act of 1815, c. 203, relating to the retailing of spirituous liquors. The legislature meant the second section of the act of 1811, c. 113. This view of the second section of the statute of 1838 is further confirmed by the language itself, of the section. It declares, “that all persons convicted of ihe offence of retailing spirituous liquors, shall be fined, &c.” The language shews that the offence” mentioned is the offence* pointed out in the second section of the act of 1811. The second section of the act of 1838 creates no new offence, and authorises the court to increase the fine beyond the sum to which it had been limited by the act of 1811.
    If the act of 1838 repeals the acts of 1811 and 1823; and, also, the acts of 1831, 1832, and 1836, then we certainly have no statute against retailing liquors, either with or without license; and it follows that no person can be punished for such retailing, since it was never indictable at the common law. I assume this position upon the ground that the second section of the act of 1838 does not make it an offence so to retail. That act creates no offence, defines no offence, but refers to 11 the offence” as something already known and existing. I further contend, that the reference to an existing and already defined offence, shows conclusively that the acts of 1811 and 1823 are in force, for uthe offence’.’ referred to can be found no where else but in.those statutes.
    There was another act passed at the last session of ihe Ee-gisiature, on the 27th of January, 1838, ,c. 169, which shows that that body considered that licenses, to retail spirits, were still to be had and used. The act referred to makes it penal for “licensed grocers” to sell spirits on. Sunday^. Would the legislature have embodied in its criminal code a new statute which was to die as soon as born? Why speak of “licensed” grocers if no licenses were hereafter to issue? It would be useless as respected the short period of time the licenses previously granted were to exist.
    4. In the construction of doubtful statutes, 1 believe the established rule is, to endeavor to arrive at the intentions of the legislature. 6 Dane, 595, 596. By reference to the report of the special committee who presented this bill, it will be seen it forced no part .of their plan to repeal the acts of 1811 and 1823. That committee, on the first page of their report, say — “With such a state of things, accompanied with a slight amendment of the laws regulating the manner of granting tavern licenses, your committee would at present be content.” And on the last page they say: They, in conclusion, recommend the repeal of the acts of 1831 and 1835, authorizing persons to retail spirits; and an amendment of the existing laws so as t,o impose an increased fine upon all persons thereafter guilty of such offence. A bill in conformity witli the foregoing views, is herewith reported, and its passage recommended.” I contend that the act of 27th January, 1.838, is in conformit}’’ with these recommendations — that it leaves in force the acts of 1811 and 1823 — refers to the “existing laws” alluded to by the committee — that it creates no new offence, but merely gives the court power to levy an “increased fine” — and, consequently, that in the construction of the statute by the judge, there is error.
    5. The circuit judge was in error when he refused to instruct the jury, that if they entertained a reasonable doubt as to the meaning of these statutes, still they ought not to acquit on that account.
    í. A verdict oi conviction is, formally, that we find the defendant guilty, in manner and form as charged in the indictment. In, this case, Dyer is charged with selling a gill of spirits contrary to the form of the statute, in such cases made ánd provided. The Jury comes into court and tells the judge: “We don’t know what the statute means, we entertain' doubts as to its purport.” According to this portion of the judge’s charge in the case, he would respond to the Jury— “You must still find him guilty, in manner and form as charged in the indictment, and that his acts are contrary to the provisions of the’ statute, although you don’t know what the statute means — provided you aré" satisfied of the fact that he sold the gill of liquor.” Nó oné questions that if the jury énter-tain reasonable doubts as to the facts, they must acquit — that Is, if they doubt whether the facts bring the case under the law, they mus’t acquit — but though they may not be satisfied that the law covers the facts, they must convict. 6 Dane, 688, § 16. — 590, § 35.
    5. “The Court explained to the jury, that if the judge’ erred in his views of the’ Taw, his error could be reversed in the Supreme Court; whereas, if the jury took upon thém-selves to decide the láw different from the charge, it could" not be reversed, if wrong.” I think this part of the charge was' calculated to have, and did have, dn undue influence upon the mind of the jury. See 5th Yerger, Gamer vs. the State? at page 179, — the two concluding paragraphs of Judge White’s' Opinion.
    6. But,'suppose I am mistaken upon all the foregoing points —that the act of 1838 repeals the acts of ÍS1I', 1823, 1831 and 1835, still I contend, that the defendant was wrongfully convicted; and that inasmuch as Dyer applied to the'clerk for a license before the act oí 1838’ was' signed by the Speakers, as between him and the State, from what passed between him and the clerk, he is to be considered as having obtained a1 license' under the act of 1831, before the'act of 1838 became' a laW. This brings tip the question when an act becomes a law in Tennessee. By the Constitution of Tennessee, Art. 2, § 18, “No bill shall become a law until it shall be read arid passed on three different days in' each House, and he signed by the respective Speakers.” See also 6 Dane. 58?; 1 Dane 541; 5 Dane, Art. 6, p. 247. Then, when Dyer applied to the clerk the act of 1838 had not become a law; consequently, the act of 1831 was then ira-force. The court has said, that upon proper occasions, it will-look to the very hour of the day when a thing was done. 4 Yerger, 270.
    But it may be said, that though Dyer applied for the license, before the act of 1838 became a law, still as he did not actually obtain the license, that application avails him nothing. The act of 1831 provides, that “any person wishing to retail spirituous liquors is hereby authorised to apply to the clerk of the county court for a license for that purpose; and such clerk is hereby authorised and required, to issue to such person so applying, a license, &c.” Here, Dyer did all that the law required of him; and when the agent of the State, which is the State itself, did not do what he was “required” to do, can the State charge that man with an infraction of its laws. There is a material distinction between a case when the State is prosecuting an individual for an infraction of its laws, and the case of two individuals who are contending for some private right, [f the State prevents the man from conforming to the law, can the State punish him for a breach? It may be said that Dyer had modes of redress — a suit for damages, and coercion by means of a mandamus. ' So, perhaps, he had. But his leaving these private modes of redress do not affect the question of the right of the Government to punish him for not obtaining that which the State prevented him from obtaining. But I maintain that he had a license under the act of 1831. The evidence shows that the clerk told him, “he considered the application as made, and he should have one,” if allowed by law to issue it. If the act of 1838 was not then in force, he w’as authorised to issue .one. It is not the mere issuance of the paper, called a license, that gives the privilege. A man may have a license, and yet have no such paper. That paper would only be an evidence that he had the privilege. It is not the commission, the parchment, that makes a man an officer. The commission is only a convenient evidence that he is an officer. It has been decided that where a person’s license expires between the times of the meetings of the commissioners empowered to grant it, such person is not liable to indictment for selling liquors during that intermediate period., because the Govern» merit bad put it out of his power to get the license. See 2 Johnson’s Cases, 346.
    The Attorney General, on behalf of the State,
    argued in the first place, that the act of 1838, c. 129, in itself, irrespective of all other enactments upon the subject, forbids the retailing of spirituous liquors, because it inflicts a penalty for doing the act, denominates the act a misdemeanor, and makes it punishable as such, and hence the thing is unlawful, although there are in the act np prohibitory words. Dwarris on Statutes, 678, marginal page.
    In the second place, he said that by repealing the act of 1831, C.-S9, the legislature had not revived the act of 1823, c. 33, because the act of 1823 had been repealed by the act of 1832, c. 34, as well as by the act of 1831, and a repeal of one or two repealing acts, and not of all, does not revive the first statute. 12 Rep. 7; Dwarris on Statutes, 675. He insisted that a statute is repealed either by implication, (where the provisions of a new statute are inconsistent with those of an old one upon the same subject,) or expressly. But there is nothing in the act of 1838 which conflicts with the first sec. tion of the act'of 1832, c, 34, and that statute not being mentioned in the act of 1838, it follows that only such parts of it are repealed by implication as are inconsistent with the provisions of the act of 1838. That part of it which relates to granting retailing licenses is repealed, because the act of 1838 expressly annuls the authority to grant such licenses. But the part of it, namely, the first section, which prohibits retailing without license, corresponds with the purview of the act of 1838, and it consequently stands in force, a substantial prohibition of unlicensed retailing. And the authority to license being destroyed, there can be no retailing. So that as the laws now stand, applying to them the same principles of argument pressed for the plaintiff in error, the act of 1832 prohibits retailing without license, and the act of 1838, after declaring that license shall not be granted, prescribes the punishment which shall be inflicted on a party guilty of that “of-fence;” namely, that he shall be punished as for a misdemeanor. Therefore the doubt which has been insisted upon in the argument, occasioned by the want of prohibitory words in the act of 183’8,'ís rerhovecT by the first section of the act* of 1832, which is expressly prohibitory. And he said that that prohibition was as complete as if it had been inserted in' the act of 1838, as one of its sections. He also contended that the act of 1832'was emphatically designed to répeál the acts of 1811 and 1823, because it prohibits public housekeepers, as well as Other persons, from retailing, without taking oul the license provided by'fhe act of 1831; whereas by. those statutes public-house keepers could retail under the authority of their ordinary license, as an' incident to the occupation.
    E. H. Ewing in reply,
    insisted that fhe act of 1838 contained no prohibition of retailing:1 that fhe act*of retailing in itself was indifferent, as well of spirituous liquors as'of any other articles of merchandise or traffic; that it followed necessarily, if a statute which contains no prohibition of retailing, speaks of retailing, an indifferent act, as an “offence,” reference must be had to some other existing law prohibiting it, and making what in itself is innocent, criminal. In what law was this prohibition to be found? Notin the act of 1831, for that was' expressly repealed by the act of 1838. Not in the acts of 1811 and 1823; because as no laws'are repealed by a new statute but those which are mentioned, and as the repeal of a' repealing statute revives the laws which «¿annulled, sb here, by repealing the act of 1831 by designation, and saying nothing of the acts of 1811 and 1823, which had been repealed by that act, they stand revived. But they contain no prohibition of retailing per se. On the contrary, they prohibit un-' licensed retailing, and prescribe the mode of licensing-; And in the mode prescribed, Dyer has been licensed, and consequently has been guilty of no “offence,” in retailing the liquor as charged in the indictment.
    But supposing the acts of 1811 and 1823 not to be revived by the repeal of the statute repealing them; that is, supposing it to be true, as insisted, that the act of 1838 does contain a substantial prohibition of retailing, denominating it ah “of-fence,” still, what that “offence” is, can only be known by referring to the acts of 1811 and 1823, and such reference' ,aan be made to those statutes, neither for that, .or any other purpose, if, as contended, they are not revived.
    December 17.
    It is extremely metaphysical, if not nonsensical, to argue, that a portion of the act of 1832, a law which is only amenda-tory of the repealed law of 1831, can remain in force, and escape the fate of the act of which it was an amendment. The .argument of the Attorney General supposes that the words— “No public housekeeper, or other person whatsoever, shall retail spirituous liquors in less quantities than one quart,” stand unrepealed, a substantive prohibition of retailing; while the concluding words of the section — “unless he shall first obtain a license for that purpose, as provided for in the act of 1831, which this is intended to amend,” are utterly abro-grated. This mode of decimating a law, destroying the Egyptians and passing over the Chosen People, is at least new, and is a discovery to which nothing but the march of mind and lapse of ages could ever have brought the world. To be serious, it is believed that no precedent can be found where a part of a section has been regarded as repealed, while the residue standing inclose, and, one would think, inseparable connection with the other part, has been held to remain untouched. It would be difficult to believe that the legislature intended, by abrogating the licensing power, to produce so wonderful a metamorphosis upon the act of 1832, as to make out of what was a law regulating the mode of licensing retailing, a simple and unqualified prohibition of retailing.
   Turley, J.,

delivered the opinion of the court-.-

Isham Dyer was indicted and convicted of the offence of retailing spirituous liquors — and as a punishment therefor was sentenced by the judgment of the circuit court of Davidson county to pay a fins of ten dollars, to reverse which, this writ of error is prosecuted, and -it is now contended on his behalf that the judgment of the court below ought, to be reversed— because, 1st, he obtained a license from the county court of Davidson, on the 6th day of February, 1838, to keep an ordinary for twelve months, under which he was by law au-thorised to retail spirits — and that it was during the continuance of that period of time, that the offence, if any, was .committed, for which he stands convicted. And 2d, that he applied to the clerk of the county court of Davidson, for a license to retail spirituous liquors at a period of time, when by law he was entitled to receive it — and that the clerk, who was the agent of the state, authorised to issue it, refused to do so.

The first proposition presents the question, whether there was on the 6th day of February, 1838, any law in force which authorised the clerk of the county court of Davidson to issue a license, under which spirituous liquors might be retailed, and if not, whether there is any law, under the provisions of which a person may be punished for so doing? In order to a correct determination of this question, it becomes necessary to examine the various statutes which have been enacted upon the subject, in order to deduce therefrom the proper rule of action. The offence charged, not being such at common law, it necessarily follows, that if there be no statute prohibiting it, it is not indictable; and also, that though it may be in general prohibited, yet if it be permitted under particular exceptions, and the person charged can bring himself within an exception, it ceases to be an offence.

The act of 1767, c 8, § 16, recognises a law in existence, requiring- ail persons, wishing to keep an ordinary, (which is a public house of entertainment,) to obtain a license for that purpose — the words of the statute are, “Every person who shall obtain a license agreeably to law, to keep an ordinary, &c.

The act of 1779, c 10, § 3 and 12, provides that “no person, not having license for keeping an ordinary, shall sell or retail spirituous liquors in smaller quantities than the quart, under the penalty of one hundred and twenty-five dbllars, nor by larger quantities than the quart, to be drank at the place where sold.

The act of 1811, c 113, § 1, provides, that any'person or persons wishing to keep an ordinary or house of entertainment, shall prefer his or her petition to the county court in which he or she resides, paying a license therefor, for one year; and if said court, upon examination of his or her petition, are satisfied that he or she so applying, are of sufficient probity, and not addicted to any gross immorality, they may order the prayer of the petitioner to be granted. The second section provides, that if any person or persons shall keep an ordinary, or retail liquors, by a smaller quantity than is pointed out by the act of 1779, c 10, without first having obtained a license therefor, as aforesaid, such person or persons shall be liable to an indictment for keeping a tippling house, and upon conviction, shall be fined by the court in a sum not exceeding five dollars, nor less than one dollar. The act of 1823, c 33, provides in § 1, that no county court in this state shall hereafter grant license to any person whatever to keep a public inn, or house of entertainment, unless the person applying for such license, shall first prove in open court, by the testimony of creditable witnesses, that the person applying has a good moral character, and that he, she or they are provided with lodging, stables and house room for the accommodation of travellers and lodgers; and in no case shall such license be granted, if the court shall be of opinion, that the retailing of spirituous liquors is the principal object in obtaining such license.

The act of 1831, c 30, provides in § 1, that any person wishing to retail spirituous liquois in this state is hereby au-thorised to apply to the clerk of the county court, of the county in which he may wish to retail such liquors for a license for that purpose, and said clerk is hereby authorised and required to issue to such person so applying, a license for the term of one year, from the date thereof — said applicant first paying therefor to said clerk the sum of twenty-five dollars.

The act of 1832, c 34, which was passed to amend the act of 1831, c 80, provides in section 1st, that no public housekeeper, or other person whatever, shall retail spirituous liquors in less quantities than one quart, unless he shall first obtain a license for that purpose, as provided in the act intended to be amended. The act of 1835, c 13, § 4, provides, that each and every keeper of a tavern or house of public entertainment shall pay annually a tax of five dollars, with a proviso, that such license shall not authorise the retailing of spirituous liquors, unless such privilege is mentioned in the license, in which case, twenty-five dollars shall, in addition to the sum of five dollars, be paid for such license.

The act of 1838, c 120, entitled an act, to repeal all laws licensing tippling houses, and for other purposes — provides in section 1st, that the act of 1831, c SO, and so much of the fourth section of the act of 1835, c 13, as relates to the licensing and increasing the tax on those who retail spirituous liquors, be, and the same are hereby repealed. It also provides in section second, that all persons hereafter convicted of the offence of retailing spirituous liquors shall be fined at the discretion of the court, as in other cases of misdemeanor.

Upon this review of the statutes, the first thing that strikes us, as worthy of remark is, that from the year 1779, up to year 1831, in all laws passed upon the subject of retailing spirituous liquors, there appears to be an anxiety, which increased upon every action by the legislature to confine the privilege to persons of probity and trust, and who from being engaged in a laudable and necessary calling, requiring both industry and capital in order to be conducted with success, it was supposed would have every inducement not to abuse the dangerous privilege entrusted to them. The act of 1779 confined the privilege to persons who had obtained a license to keep an ordinary. This was found not to be sufficient to control within proper limits the evils resulting from retailing spirituous liquors. The act of 1811, confined the privilege to .those whom the county court, upon examination, should be satisfied were of sufficient probity, and not addicted to any gross immorality. This was found not to be suffix cient for the purpose designed, and the legislature being determined to find a remedy for the evil, passed the act of J823, by which the privilege was confined to those, who could, by creditable witnesses, show that they were of good moral character; that they were provided with bedding, stables and house room, for the accommodation of lodgers and travellers, to wit, that their design was in good faith to keep a house of public entertainment; and to ensure this, the court was prohibited from granting the privilege, if, in its opinion, the retailing of spirituous liquors, was the principal object in asking a license.

The next thing that strikes us as worthy of remark, is, that in 1831, some eight years after the passage of the act of 1823, the whole policy of legislative enactment upon this subject appears to have been changed; instead of the restrictions of occupation and character, which had heretofore been thought of such vital importance in the granting of a privilege so liable to abuse in unworthy hands; it appears, that nothing thenceforth was to be taken into consideration, but the ability to pay a tax of iwenty-five dollars. Whence, it may be asked, did this great and sudden change take place? The reason is to be found in the history of the country. It had been ascertained by experience, that restrictions which had been previously created, and which it had been believed were of such a character as would control, and keep within proper limits this dangerous privilege, had been totally disregarded by those to whom the power of granting it had been entrusted; and it was hastily thought, that no greater evil would result from increasing the tax, and making the privilege common to all persons.

The next thing that strikes us as worthy of remark, is, that it was found necessary, in the year 1832, the first year after the passage of the act of 1831, to begin to put restrictions on its operations, by compelling all persons, before obtaining a license to retail spirits, to take an oath, that they would not retail any spirituous liquors to anj' slave, nor permit the same to be done, unless by the written permission of the master or overseer. In the year 1835, it was found necessary to continue the restrictions by an additional oath, that they would not knowingly permit nor allow any gaming for whiskey, wine, money, or any other thing to drink or eat, or other valuable thing, in the house in which the spirits were retailed, or on the premises. And that if any such betting or gaming should take place within their knowledge, that they would give information thereof to the grand jury of the next circuit court, and also to inflict the pains and penalties of perjury upon all those who might violate this oath; and finally, it was found necessary to pass the act of 1838, which is entitled as has been seen, an act to repeal all laws licensing tippling houses.

Now what is the legitimate conclusion from this view of the subject? That inasmuch as the legislature had tried to obviate the evils resulting from the license to retail spirituous liquors by the restrictions of character and occupation, until it was found to be of no avail; that having then extended the right, without restriction to every person, until it was found at the expiration of one short year, that they were again compelled to resort to them; and that finding at last that oaths and obligations could not remove the dangers and difficulties arising from the passage of the act of 1831, it was deemed expedient to put a stop to the practice of retailing spirituous liquors altogether. That this is the correct view of the subject, the history of the country also proves. It is not contended that this view of the case is conclusive, though we think it entitled to much weight, and the more especially, if there be doubt in the construction of the statutes referred to upon this subject.

We will now proceed to examine the grounds upon which the defence in this case is made to rest. 1st. It is said, that the act of 1838, c 120, only repeals the act oí 1831, c 80, which authorised every person, upon the payment of twenty-five dollars, to procure a license to retail spirituous liquors, and so much of the fourth section of the act of 1835, c 13, as required the keeper of an ordinary in addition to his tax of five dollars for such license, also to pay twenty-five dollars additional tax for the privilege of retailing spirituous liquors. And that the necessary consequence is, that inasmuch as these statutes operated as a repeal of the acts of 1S11, c 13, and 1823, c 33, their repeal again sets up the acts of 1811 and 1823. To this objection it is answered, first, that though it may be true, that the act of 1838 only repeals the act of 1831 and part of the act of 1835, yet, neither the act of 1811 nor 1823 can be setup thereby; because the acts of 1811 and 1823 are also repealed by the act of 1832, c 34, which is not repealed by the act of 1838, and this upon the principle of the construction of statutes, that when two statutes repeal another, a repeal of one of the repealing statutes will not again set up the statute repealed. We recognise the correctness of the legal principle, and the only question then is, whether the act of 1832, is a repeal of the acts of 1811 and 1S23. We think it is. We have seen, that by the provisions of the acts of 1811 and 1823, persons who obtained a license to keep an ordinary, might retail spirituous liquors. By the provisions of the act of 1831, any persons wishing to retail spirituous liquors were authorised to apply for a license for that purpose, (not.for the purpose of keeping an ordinary,) and were entitled thereto upon the payment of twenty-five dollars. By the act of 1832, the keeper of a public house is prohibited from selling spirituous liquors by retail, unless he shall first obtain a license for that purpose, under the provisions of the act of 1831. Now this of necessity is a repeal of that portion of the statutes of 1811 and 1S23, which authorises the keeper of an ordinary or public house to retail spirits. By these statutes all that was necessary was to procure a license to keep an ordinary, and the right to retail spirits followed as a consequence; hut by the act of 1832, although the ordinary license be procured, yet the consequence is excluded, unless a special license therefor be obtained, under the act of 1831; this act being repealed, no such license can now be procured, and the consequence cannot attach to the keeping of an ordinary under the repealed statutes of 1811 and 1823.

2. This objection is also met by the answer, that the act of 1838, c 120, does operate virtually as a repeal of all laws authorising a license to retail spirituous liquors, because, by the provisions of the second section it is made a misdemean- or to retail spirits, punishable by fine, at the discretion of the court, as in case of other misdemeanor. We have seen that the wording of this section is, that “all persons convicted of the offence of retailing spirituous liquors shall be fined,” &c. This, it is contended, cieates no new offence, but only refers to one created before, viz., the retailing of spiritous liquors without a license; that if the acts of 1811 and 1823, the laws authorising a license to be issued have been repealed, then we have nothing by which the offence can be defined, as the repealed statutes cannot be referred to for that purpose.

We do not recognise the correctness of this principle, but hold, that when it may become necessary to refer to a repealed statute, in order to define correctly an existing offence, it may well be done, but if this were not so, it could avail the defence nothing, for the statutes of 1811 and 1823 do not either of them define what retailing spirituous liquors is. It is true, that the act of 1811 makes it indictable to do so, without a license, under the restrictions there created, and the act of 1823 does the same. But when we wish to ascertain what retailing is, we are under the necessity of referring to the act of 1779, c 10, where it is defined to be, the setting of any quantity less than a quart without license, or any greater quantity, if to he drank at the place where sold; and subjects persons guilty of so doing to a penalty of one hundred and twenty-five dollars. This statute is not repealed by the act of 1838, c 120, at least so far as it inflicts the penalty upon all persons who may sell by a greater quantity than the quart, intended to be drank at the place where sold, which penalty this court, in the case of Moore vs. The State, 9 Yer. 353, held to be inflicted by the 12th section of said statute. The offence of retailing spirituous liquors, then, was created by the act of 1779, c 10, and subjected persons guilty thereof to a penalty; it was made indictable by the acts of 1811 and 1823, provided a license for that purpose was not obtained, and it is made indictable by the act of 1838, without any exception in favor of a license. But, as has been said, if there were doubt as to the construction which should be given to this statute upon its wordings, we could have recourse to information derived from the history of the country as to the evil intended to be remedied, for the purpose of aiding us in giving the correct construction; we could also call to our aid for the same purpose the title to the act. When all these principles are conbined, they form a case of entire prohibition to retail spirituous liquor, so strong, that it is impossible to assail it with any hope of success.

2. It is said in defence, that Dyer, on the morning of the 27th of January, 1838, applied to the clerk of the county court of Davidson, for a license to retail spirituous liquors, which was refused, although there was then no law in existence prohibiting it. The act of 1838, c 120, had passed both Houses of the Legislature on the 26th of January, 1838, but was not signed by the speakers till the evening of the 27th. And it is contended, that the act had no validity till this was done, and therefore could not have taken effect at a period anterior thereto.

Note. Statutes take effect upon the most remote and secluded portions of the State, from the time of their passage, not allowing a single moment for gain ing intelligence of their passage: — a principle of law destitute of every semblance of reason, and fraught with hardship and severity. It is not quite so bad, however, as the old English rule — by which, if no period was fixed by the statute itself, it took effect, by relation, from the first day of the session in which the act was passed. This rule was abolished by an act ot 33 Geo. III—1793— by which j-tatutes are to have effect only from the time they receive the royal assent. The settled principle of American law is declared by Marshall, C. J., in Matthews vs. Jane, 5 Cond. R. 270, to be, “that a statute, for the commencement of which, no time is fixed, commences from its date;” the constitutional prohibition of ex post facto and retrospective laws having annulled the ancient rule of the common law. The statutes of the United States take effect from the day of their appproval by the President, that being the day of their date. The same rule, of course, applies to the statutes of those States in which the executive is so far a branckfof the legislative department, as that his concurrence in its acts are necessary to their perfection. But in those states where bills, which have passed the houses, become laws when signed by the speakeis, and not until then, it would seem to be giving them a retroactive effect, to make them relate to the day of their passing the houses.

It is true, that it is provided by the eighteenth section of of the 11th article oi the Constitution of the State of Tennessee, that “no bill shall become a law until it shall be read and passed on three different days in each house, and be signed by the respective speakers.” But when this has been done, we think the law takes effect from the date of its passage by relation. The duties to be performed by the speakers in signing the statutes is not of a legislative, but ministerial character. And to cause the operation of a law to depend upon the period of time when this duty was performed, would introduce too great uncertainty in the administration of justice, as there would be nothing but the memory of man to resort to for the purpose of ascertaining it. — The signature not being dated, and there being no record of the time kept.

But wo also think that the refusal of a clerk to issue a license to retail spirituous liquors under the provisions of the act of 1831, even if it had been in force, would not have authorised the plaintiff in error to retail as if he had procured one. It is the possession of the license, not the application, which gives the right; and the only remedy, in the case of a refusal, would be against the clerk, either by an action on the case, or by mandamus.

We are therefore of opinion, that there is no error in the proceedings of the court below, and affirm the judgment.

In New York, every law, unless a different time be presciibed therein, takes effect throughout the state, on, and not before the 20th day after its final passage. 1 Kent’s Comm, 454, 3d Ed. This, or some similar rule ought to be adopted in every state in the Union. See 1 Gallison, 62, case of the Brig Ann; 1 Kent’s Com. 454, 3d Ed.; Dwarris on Statutes. 682, et seq.  