
    A. J. Whittington v. The State.
    Retailing Wine. Without license. Code and statutes construed.
    
    Under chapter 39 of the Code of 1880, “ In relation to the sale of vinous and spirituous liquors,” as amended by chapters 6 and 7 of the Acts of 1882 and chapter 11 of the Act of 1884, it is unlawful to sell wine in this State in a less quantity than a gallon without a license.
    Appeal from the Circuit Court- of Amite County.
    Hon. J. B. Chrisman, Judge.
    On the 11th of September, 1884, A. J. Whittington was indicted for selling, on the 8th of that month, without a license, “ vinous and spirituous liquors in less quantities than one pint.” The proof showed that the defendant had, “within two months next before the finding of the indictment, sold wine, and nothing else, fully believing he had the right to sell wine by retail without a license.” The court below instructed the jury that if they believed from the evidence that the defendant, without a license, had “ within two months before the finding of the indictment sold wine at retail in less quantities than one pint,” he was guilty of the offense charged in the indictment. The defendant was convicted and appealed to this court.
    
      Neilson & Stockdale, for the appellant.
    The Acts of 1882, p. 11, amend § 1098 of the Code of 1880, so as to make it read as follows, to wit (in the proviso): “ But any person may sell wine made of grapes and other fruits without paying any tax or obtaining any license.”
    
    
      This is the law as it now stands in this State, and it is no offense to sell wine, unless § 1112 destroys the effect of the other paragraphs of that chapter and also the statutes of 1882.
    Section 1112, as amended by Acts of 1884, p. 18, denounces a penalty against the sale of vinous and spirituous liquors in less quantities than one gallon, and if that clause in chapter 39 is to be regarded, the appellant was properly convicted.
    The legislature regarded, that chapter as an act. Section 1112 provides a penalty against people who sell liquors “ without having license therefor, in pursuance of this act;” yet no license is provided in § 1112, but is provided in § 1100 and regulated by other portions of the statute.
    The last utterance of the legislature on the subject is that any person may sell wine without license or tax. The legislation on this subject shows that the intention of the legislature was clearly not to restrict it, and the sale of it is of necessity excepted out of the penalty of § 1112 by the affirmative proviso of § 1098, as amended in 1882.
    
      T. S. Ford, Attorney General, for the State.
    Section 1098 of the Code of 1880, as amended by the legislation of 1882, reads as follows:
    “ It shall not be lawful for any person to sell vinous or spirituous liquor in so small a quantity as one gallon, or in a greater quantity, without having first paid the privilege tax required and having obtained the license prescribed therefor by the revenue law, which imposes taxes on certain privileges; but any person may sell wine made of grapes and other fruit without paying any tax or obtaining any license.”
    * * * * * * * *
    The tax referred to in the last line is the privilege tax imposed by § 585 of Code of 1880, and the license is the privilege license, and not the license to retail vinous and spirituous liquors in less quantity than one gallon.
    The entire effect of the legislation is to authorize the sale of wine in greater quantities than one gallon without requiring the payment of a privilege tax; but the party who sells vinous liquors in less quantity than one pint (which is, of course, less than one gallon) violates § 1112 of the code as amended, and commits the offense of which the defendant was convicted.
    By the construction suggested the plain intent of the legislature is pursued and all conflict between § 1098 and § 1112 avoided.
   Campbell, J.,

delivered the opinion of the court.

Under the Code of 1880 one might lawfully sell wine made of grapes grown by himself in any quantity not less than one pint without paying any tax or obtaining license. Section 1098. As amended by act approved February 23, 1882, and one approved March 9, 1882, chapters 6 and 7 of Acts of 1882, chapter 39 of the code authorized the sale of wine made of grapes and other fruits, without regard to who grew them, in any quantity not less than a pint. The retention of the word pint in § 1112 made it penal to sell vinous or spirituous liquor in any quantity less than a pint without license. By act approved March 4,1884, Acts of 1884, p. 18, the word “pint” was stricken out and the word “gallon” inserted in § 1112. The effect of this was to make it penal thereafter to sell wine in less quantity than a gallon without a license.

Affirmed.  