
    Redding vs Commonwealth.
    Error to the Louisville City Court.
    I'RJOICTMENT.
    
      Case 92.
    
      April 25.
    The case stated.
    
      Presentments. Retailing Spirits, fyc.
    
   Judge Marshall

delivered the opinion of the Court.-

The only question presented for our consideration, arises on the construction of the Act of February, 1839, (Sess. Acts, 167,) amending the 14th section of the act of the previous session, for amending the Charter of the City of Louisville.

A presentment for selling spirits, &c. in the City of Louisville, which charges a selling “ill the Oily ot Louisville, in quantities less than a quart, spirituous, malt, & fermented liquors, &o.” is good under the statute of 1838, not affected by the act annulatory thereof in 1839.

By the 14th section of the last mentioned act, it is de-dared that “ no person shall sell any spirituous, malt, oi “fermented liquor, in said Oily, by retail, that is, in any “ quantity less than a quart, without licensefrom the Coun- “ cil, under the penally of fifty dollars for every such of- “ fence. ” The amendatory act of 1839, enacts that said 14th section “ shall be so amended as that no person shall “ sell any spirituous, malt, fermented, or other liquors, or “combinations thereof, in said City, by the retail, that “is, less than a quart, or of a quart, or of more than a “ quart, when drank in the house, or in the premises “ used or connected with the house of the person selling “the same, without a licensefrom the Council, under “penalty of fifty dollars for every such offence. ”

The presentment in this case charges, that the defendant did, on, &c., sell, in the City of Louisville, by the retail, in quantity less than a quart, spirituous, malt, and fermented liquor, &c. And the question is whether, since the amendatory act of 1839, there is any such offence as is described in the presentment.

The first of these acts, it will be observed, makes the selling of liquor by retail, in Louisville, an offence, without reference to the place or the fact of its being drunk. The amendatory act repeats the prohibition against selling liquor by retail, in the City, and goes on to prohibit the selling of a quart, or more than a quart, and introduces the new fact of its being drunk in the house, &c. Do the words “when drank in the house” qualify the whole of the previous description, or do they qualify that part only which relates to the sale of a quart, or more than a quart? Does the. amendatory act abolish the of-fence of merely selling by retail in the City, by introducing the new fact of the liquor being drunk in the house, as necessary to constitute an offence, or does it, by re-enactment, continue the old offence, without this ingredient, and also define a new and additional one, of which this ingredient shall constitute an essential part?

It must be confessed that little aid is to be derived in the construction of the amendatory act, either from its punctuation, or from the application of any grammatical rules to its structure. But it is apparent, in the first place, that the amendatory act intends to make a distinction between selling liquors in quantities less than a quart, and selling a quart or more. For if the sale of any and all quantities, great or small, were intended to be placed on precisely the same footing, why should reference have been made to different quantitis according to the well known distinction, as applicable to this subject, between retail and wholesale? And if such distinction were intended, it can only be carried out by supposing the condition of being drunk in the house, to have been intended to apply exclusively to the sale of liquors by the quart or larger quantity.

Again, the act of 1838 denounces only the sale of certain liquors by retail, in the City. The amendatory act not only makes this denunciation more comprehensive by including all sorts of liquors or combinations thereof, but also extends the denunciation to the sales of larger quantities, which had been wholly omitted in the previous act. And while the distinction between selling liquor by the small and in larger quantities, recognized by our general statutes, and founded upon an observation of the less deleterious effects of the latter mode, may suggest a reason why selling in this mode should not be subjected to the penalty unless the liquor sold be drunk in the house, &c. of the vendor, the same consideration and ah so the example of our more general statutes tends to repel the application of the same condition to the sale of liquors by retail. It is obvious loo, that in a city, the object intended to be effected by the prohibition in the act of 1838, against the sale of liquors by retail, would be but illy attained if the denunciation were restricted to those cases in which the liquor may be drunk in the house, &c. of the vendor. While therefore we find in these considerations, and in the obvious policy of the City and of the State, and in the example of our more general statutes, a sufficient reason for extending the prohibition of the act óf 1838, so as to include the sale of all sorts of liquors and their combinations, by retail, and also forextending the prohibition to sales of larger quantities, when drunk in the house, &c. we do not fiqd any motive for restricting the denunciation of the act pf 1838, with respect to sales by retail, and there is certainly nothing in the amendatory act which requires us, by construction, to give it this restrictive operation. On the contrary, it seems to have been intended in this act to repeat, in more comprehensive terms, the prohibition against retailing liquors in the City, and also to define as a new offence, the sale in larger quantities, when the liquor is drunk in the house, or on the premises, &c. of the vendor.

Dozier (f- Hag gin for plaintiff: Cates, Alto. Gen. for Commonwealth.

Under this view of the statute, the presentment was good, though it did not aver that the liquor was drunk in the house, &c. of the vendor, and the admission of proof that it was in fact so drunk, was neither erroneous nor injurious to the defendant.

Wherefore the judgment is affirmed.  