
    *Thon v. Commonwealth.
    November Term, 1878,
    Richmond.
    Statute — City Ordinance — Selling- Liquor on Sunday. — Ch. 44, § 13 of an ordinance of the city of Richmond provides that every hotel keeper, and keeper of a restaurant, lager beer saloon, or other place where ardent spirits, beer, cider or other drinks are sold or given away, shall close the bar where such drinks are sold or given away every Sunday during the whole day, 6* * * and any person •violating any provision of this section shall be fined not less than ten or more than $500. The act of March 6, 1874, ch. 83, p. 76, enacts “that no intoxicating drinks shall be sold in any bar-room, restaurant, saloon, store or other place within the limits of this commonwealth from 12 o’clock on each and every Saturday night of the week, until sunrise of the succeeding Monday morning.” And the penalty for a violation of this act is a fine of not less then ten nor more than $500, and at the discretion of the court a forfeiture of his license: “provided that this law shall not apply to any city having police regulations on this subject, and an ordinance inflicting a penalty equal to the penalty inflicted by this statute” — Held: That the ordinance is not the same as the statute, either in the specification of the offence or in the penalty, so as to bring it within the proviso ’of the statute; and therefore a prosecution for a violation of the act may be sustained.
    The case is fully stated by Judge Moncure in his opinion.
    /. B. Young, for the appellant.
    
      The Attorney-General, for the Commonwealth.
    
      
       Statute — City Ordinance — Selling- Liquor on Sunday. — See Morganstern v. Commonwealth, 94 Va. 789, where the holding of the principal case that the city ordinance of Richmond is not the same as the statute prohibiting the sale of liquor on Sunday, is affirmed. See also Thon v. Com., 77 Va. 289.
      I. INTOXICATING LIQ.UORS IN GENERAL. Wliat Liquors Are Intoxicating: — Cider.—
      In State v. Oliver, 26 W. Va. 422, it was held that crab-apple cider is not included under a statute forbidding the sale without a license of “spirituous liquor, wine, porter, ale or beer or any drink of a like nature.”
      Same — Gum-Camphor.—And likewise, under this statute, the sale of gum-camphor and alcohol mixed by the seller before delivery and sold as a medicine, is not embraced in this statute. State v. Haymond, 20 W. Va. IS.
      Same — Essence of Cinnamon. — But under this section and an auxiliary section providing that all mixtures or preparations known as “bitters” or otherwise, which will produce intoxication, shall be deemed spirituous liquors, the sale of the essence of cinnamon is prohibited. State v. Muncy, 28 W. Va. 494.
      Same — Beer—Brandy.—In State v. Thompson, 20 W. Va. 674, it was held that the words “spirituous liquors or wine,” as used in the 4th section of chapter 107, Acts 1877 do not embrace beer, and consequently a druggist is not authorized by said section to sell lager beer, but must have a state license as provided under the first section of the act above referred to. In Thomas v. Com., 90 Va. 92, it was held that the court worna take judicial knowledge of the fact that apple brandy is intoxicating.
      Local Option. Laws — Constitutionality.— In Savage v. Com., 84 Va. 619, it was held that the statute providing for the submission of the question of liquor license to the qualified voters of the several counties, etc., of the state, was not unconstitutional as delegating a portion of the legislative power of the general assembly. In Helfrick v. Com., 29 Gratt. 844, it was held that the provisions of the Moffitt Register Law directing that the cities of the Commonwealth shall be first supplied with registers and then the towns and counties, is not unconstitutional as being an unjust and partial discrimination against liquor dealers in the cities.
      Same — Number of Votes Required. — In Chalmers v. Funk, 76 Va. 717, it was held the local option law of Roanoke county (Acts 1881-82, page 120), requires a majority of the registered votes of the county to be given against license in order to prohibit the granting of license to sell liquor, and a majority of the votes cast is not sufficient.
      When License Takes Effect. — In Sights v. Yarnalls, 12 Gratt. 292, the case was as follows: By an ordinance of the city of Wheeling, a license to keep a house of entertainment was to expire on May 1st next succeeding the date thereof. The council having in April granted such a license for the succeeding year, held such grant did not vest in the party to whom it was granted any absolute or vested right to such license; but the right did not become perfect until the actual emanation of the license, or until May 1st following.
      License to Partners. — While a license may be granted to two persons jointly, it was held in Com. v. Hall, 8 Gratt. 588, that a license to one man to keep a tavern at his house in a village does not authorize another who formed a partnership with the first for the sale of spirituous liquors which the first was authorized to sell under his license, to sell liquor at a house on the same lot and within the same inclosure as that of the tavern.
      Granting1 License — Discretion of the Judge. — Under the two early Virginia Statutes on the subject (Va. Code 1849, pages 443-4, sec. 3 and Acts 1669-70, pages 22, 239), the supreme court construed the language so as to permit the judge, in whose jurisdiction was the granting of licenses, to refuse a license at his discretion, although the applicant measured up to the qualifications required by the acts. Ex parte Yeager, 11 Gratt. 655; French v. Noel, 22 Gratt. 454.
      Same — Same—The Word “May” Construed. —In Leighton v. Maury, 76 Va. 865, the act of 1880 (page 148) was brought before the supreme court for interpretation. This act provides that the county court shall grant the license if the applicant brings himself within the law and in case of refusal, the applicant may appeal, during the term, to the circuit court, which may grant the license. It was held that the purpose of the act was to make a departure from the former laws on the subject, as construed in previous cases, and the words “may grant the license,” as applied to the circuit court mean that that court must do so if the applicant brings himself within the requirements. See also Ex parte Lester, 77 Va. 663.
      Same — Same—West Virginia Statute. — Under the West Virginia act of 1877, ch. 107, sec. 11, providing that county courts shall no authorize a liquor license “unless they are satisfied and so enter on the record, that the applicant is not of intemperate habits, the action of the county court in granting or refusing the certificate is not reviewable, and the issuance of a supersedeas thereon by a judge of the circuit court is coram non judice and of no effect; and the supreme court will grant the person injured a writ of prohibition to restrain the appellant and judge from proceeding to enforce the judgment.” Hein v. Smith, 13 W. Va. 358.
      Keeping Open Bar-Room on Sunday— Curtain. — In Morganstern v. Com., 94 Va. 787, it was held that notwithstanding the facts that a curtain incloses a bar and is nailed to the floor and reaching nearly to the ceiling, and that the bar is accessible only through a side door which, when the front door is closed, is the only way the boarders have to enter the restaurant conducted by the proprietor in the same room with his bar, and that no one is present to dispense drinks, still the bar-room is opened on Sunday in violation of sec. 3804 of the Code.
      Prosecution under General Act Where There Is a City Ordinance on the Subject. —In Thon v. Com., 31 Gratt. 887, the court held that ordinance of the city of Richmond regulating Sunday closing of liquor saloons not being identical with the general law of the state, did not come within the proviso of the state law which reads: “Provided that the law shall not apply to any city having police regulations on the subject, and an ordinance inflicting a penalty equal to the penalty inflicted by the statute,” and, therefore, a prosecution may be sustained under the act for its violation in the city. See also Morgan-itern v. Com., 94 Ga. 787.
      Social Clubs — When License Not Required. — In Piedmont Club v. Com., 87 Va. 540, it was held that a bona fide club for social purposes and not a mere device to evade the laws, does not require a license under the statute, Act 1889-90, page 242, to legalize its practice of keeping liquor in its rooms. which was served to its members and invited guests, only the members paying therefor, no profit being made and the money being used to replenish the stock. See Lewis v. Com., 90 Va. 843, where the case is distinguished, and State v. Shumate, 44 W. Va. 490, where a contrary conclusion was reached — the different decision being explained by a difference in the language of the statutes.
      • Sale of So-Called Ginger by Defendant’s Cleric. — In Savage y. Com., 84 Va. 582, it was held that on proof that persons had bought from the clerk at defendant’s hotel, liquor called ginger which, some witnesses said tasted like whiskey, but could not say whether or not it was intoxicating, a conviction could not be had as the evidence neither shows that the liquor was intoxicating nor that the cleric was authorized by the defendant to sell it: *
      •Payment of License — Condition Precedent. — In Sig.hts v. Yarnalls, 12 Gratt. 292, it was held that, the charter of the city of Wheeling authorizing it to levy a tax on innkeepers, the payment of the tax may be made a condition precedent to the issuing of the license. And, further, that where in such case a license had been ordered, though upon payment of a .tax unequal, oppressive and illegal, the payment was notwithstanding a condition precedent and must be made before any-right to the license-will vest. Nor can the grant be considered as absolute, the condition being inseparable from it. The innkeeper must accept the whole or reject the whole.
      License — Relocation by Judge. — Sec. 106, chap. 206 of Acts 1874-75, was not repealed by the act of March 30, 1877, and thereiore the judge who granted the license may revoke the same. Hogan v. Guigon, 29 Gratt. 705. See also Sights v. Yarnalls, 12 Gratt. 292.
      Acts Constituting’ Sale — Procurement for Another. — Proof of procurement and delivery of a bottle of whiskey by one person to another, at the request of the latter, is not, without more, sufficient to establish an unlawful sale. State v. Thomas, 13 W. Va. 848.
      Joint and Several Sales. — The retailing of intoxicating liquors to two distinct persons at the same time and place constitutes two distinct offenses. Com. v. Dove, 2 Va. Cases 261. In Lewis v. Com., 90 Va. 843, it was held that a single sale of liquor without license is a violation of the law which is not limited to persons engaged in carrying on the trade.
      Selling Liquor to Minors — West Virginia Statute. — Contrary to the rule in many other states, in order to constitute the offense of selling to a minor without consent’ of his parents, etc., under the West Virginia statute it is not necessary that the seller should have knowledge or reasonable cause to believe that the buyer was a minor. If the buyer was in fact a minor the seller must prove that the sale’ was made on a written order as prescribed by the statute. State v. Cain, 9 W. Va. 559; State v. Gilmore, 9 W. Va. 641.
      Shifts to Evade Law. — In Richardson v. Com., 76 Va. 1007, it was held that a distiller, who was permitted by law to sell liquor in quantities ’ not smaller that one gallon, was guilty of a violation of the law in selling by the gallon and delivering in parcels at different times.
      Keeper of Inn — Liability to Liquor Laws* —A person licensed to keep a house of private entertainment may be convicted of the offense of retailing intoxicating liquors without license. But such person, licensed as aforesaid, is not guilty of keeping an unlicensed ordinary merely because he sells liquor to De drunk at his place of entertainment in addition to furnishing lodgings at that place. Burner v. Com., 13 Gratt. 778.
      Distillers — Selling at Retail. — Distillers or persons who make intoxicating liquors from the produce of their estate cannot retail such liquor to be drunk at the place where sold under the act for the regulation of ordinances, etc., (2 Rev. Code 1819, secs. 8, 13). Clemmons v. Com., 6 Rand. 681. See Acts 1889-90, p. 249, sec. 18, for present law.
      Druggists — W est Virginia Statute. — In State v. Cox, 23 W. Va.- 797, it was he’d that under the West Virginia statute, sec. 4, ch. 107, Acts-1877, there can be no lawful sale of intoxicating liquor by a druggist, without a license, except alcohol for mechanical purposes and liquors for medicinal purposes upon a physician’s prescription.
      Same — Liability for Illegal Sale. — A person, although a druggist, may be convicted on an indictment under sec. 1, chap. 107, Act 1877 unless he can show, that as such druggist he had complied with all the requirements provided by sec. 4, chap. 107, Acts 1877; but if convicted on such indictment only the penalty prescribed for a sale without a state license could be indicted upon him and not the heavier penalty prescribed for the unlawful sale by a druggist as such.
      P resumptions When Sale by Druggist Proved — Form of Prescription. — In State v. Bluefield Drug Co., 27 S. K. Rep. 350, it was held that in any prosecution against a druggist for selling alcohol, spirituous liquor, or wine, if the sale be proven, it shan be presumed that the sale was unlawful in the absence of satisfactory proof to the contrary. -But this presumption may be rebutted by the production of the written prescription of a practicing physician in good standing in his profession and not of intemperate habits, complying with the requirements of sec. 6, chap. 32 of the Code. It was further held that this statute does not require that the prescription be in the form of an order and that the prescription being drawn for “Mr. Gibson,” that is a sufficient statement of the patient’s name. See also State v. Berkeley, 41 W. Va. 455, where it is held that if the person named in the prescription does not need the liquor the physician giving it violates the statute though a third person for whom the liquor is purchased^ really needs it.
      Physician’s Prescription — Liability for Want of Good Faith. — In State v. Berkeley, 41 W. Va. 455, it was held that under Code, ch. 32, sec. 7, if a physician gives a prescription to enable one to obtain ardent spirits as medicine from a druggist, stating that it is necessary as a medicine and is not to be used as a beverage when he believes it is not necessary, he violates the statute.
      Sales — When Made or Completed. — A member of a wholesale and retail liquor firm licensed in one county visits another county and obtains an order on his firm for whiskey which is delivered in jugs to an express agent in the county in which the firm is located and .shipped by rail to the county of the purchasers where it is received by them and the express charges paid and .subsequently the member of the firm being again in the county of the purchasers he collects the price. Held, This partner cannot be indicted in the county of the purchasers for selling liquor without a license as the sales were made in the firm’s county when the jugs of whiskey were delivered to the express agent. Until then there was only an ex-ecutory contract for the sale of the whiskey. State v. Hughes, 22 Wa. Va. 743.
      Sale on Water — United States License.— In Com. v. Sheckels, 78 Va. 36, it is held that without license obtained in accordance with the laws of the state liquor cannot be lawfully sold in the state either on land or on board of a vessel, although the seller may have obtained from the United States goyernment a special stamp tax therefor, it being expressly provided by section 3243 of the U. S. Revised Statutes, that persons holding such stamps shall not be exempt from any penalty imposed by the laws of any state for carrying on the trade within its limits.
      II. PLEADING AND PRACTICE!.
      Indictment — Sufficiency — Language of Statute.- — If the indictment may be true and still the accused may not be guilty of the offence described in the statute, the indictment is insufficient, but it is sufficient to use in the indictment such terms of description, as that if true, the accused must of necessity be guilty of the offence described in the statute. The averment “without having a license therefor according to law” is not equivalent to the averment “without paying such tax and obtaining such certificate as is prescribed by the fourteenth section” which were the words of the statute. But the words “not to be drunk where sold” not being in the statute, such allegation need not be made in the indictment. Com. v. Young, 15 Gratt. 664. See also Glass v. Com., 33 Gratt. 827 and State v. Whittier, 18 W. Va. 308. And it is generally sufficient, in an indictment to allege a statutory offence in the language of the statute. State v. Boggess, 36 W. Va. 713.
      Same — Alternative Averment as to Kind of Liquor.- — An indictment for selling liquor without license in which the liquors are enumerated as “rum, wine, brandy or other spirituous liquors” is good. Morgan v. Com., 7 Gratt. 592; Thomas v. Com., 90 Va. 92. See also Cunningham v. State, 5 W. Va. 508.
      Same — Duplicity.—An indictment for selling spirituous liquor may properly charge the sale to two persons. Peer’s Case, 5 Gratt. 674.
      Same — Same—Keeping Open a Barroom aud Selling: Liquor a Charge of One Of-fence. — Where a statute, in defining one offence, has specified a series of acts, any one of wiiich separately or all together may constitute the offence, and has prescribed t^e same penalty for the commission of one or all the acts, the commission of any two or more of them may be alleged conjunctively in the same count of an indictment, and although each act may in itself constitute an offence under the statute, yet if they are all committed by the same person, at the same time and place, they are all to be considered as parts of the sanie transaction and collectively constitute a single offence, and hence an indictment which charges the defendant with keeping open a bar-room and selling liquors therein at the same time charges but one offence. Morganstern v. Com., 94 Ga. 787.
      Same — Surplusage—Words Rejected Must Not Change Oiíence. — Where one is charged in an indictment with retailing intoxicating liquors without license “to be drunk at the place where sold” the proof must sustain the averment and the words in quotations cannot be rejected as surplusage and conviction had under the indictment in that form, the offence charged in the modified indictment being essentially different from that charged in the indictment in its original form. Com v. Coe, 9 Leigh 620.
      Same — Variance.—In State v. Berkeley, 41 W. Va. 455, it was held that there is no variance where a prescription is described in the indictment as stating'that the liquor is absolutely necessary as a medicine whereas what the prescription states is that the physician believed it to be necessary.
      Same — Negative Averments — When Not Necessary. — Where an act is made unlawful without regard to whether the wrongdoer had or had not a license and none could be granted authorizing such act, the indictment need not negative license; thus where by the terms of a local option law, no license could be granted in the local option district, an indictment for the violation of such law need not negative license. Hargrove v. Com., 22 S. 3$. Rep. 314.
      Same — Exceptions in. Statutes — Necessity of Negative Averment. — It is probably a universal rule in all the states that where an exception is contained in the enacting clause of the statute it should be negatived in the indictment and in some states it should be negatived if the exception is made a part of the enacting clause by reference. State v. O’Donnell, 10 R. I. 472; State v. Rush, 13 R. I. 198. In Com. v. Hill, 5 Gratt. 682, however, it was held where a statute enacted that “any person other than such as are hereinafter excepted who shall, otherwise than is hereinafter expressly provided, sell, etc.,” the exceptions referred to were not so incorporated into the exacting clause as to require their negation in the indictment.
      Laying Venue — Averments of Place. — In an indictment for the unlawful sale of intoxicating liquor, the venue should be laid in the county where the sale was made. State v. Hughes, 22 W. Va. 743. Where the place is not of the essence of the offence and does not affect the degree of punishment, the place need not be particularly alleged in the indictment. State v. Boggess, 36 W. Va. 713; State v. Cottrell, 31 W. Va. 162. It is otherwise where the place is of the essence of the offence. State v. Church, 4 W. Va. 745. See also Conley v. State, 5 W. Va. 522, as to the particularity with which the place must be charged when it is of the essence of the offence. Com. v. Head, 11 Gratt. 819. The same rules apply to averments of the time of sale. Arrington v. Com., 87 Va. 96; Savage v. Com., 84 Va. 582.
      Averment of Kind of Liquor Sold. — Where the statute makes it an offence to retail ardent spirits without license the indictment will be sufficient if it alleges a sale of whiskey, brandy and other liquors to the grand jurors unknown. Tefft v. Com., 8 Leigh 721.
      As to ISame of Purchaser. — The general rule is that in an indictment for retailing intoxicating liquor without license it is not necessary to name the person to whom the liquor was sold, and the words “to persons to the jurors unknown” may be rejected as surplusage. Hulstead v. Com., 5 Leigh 724. See also Com. v. Dove, 2 Va. Cas. 26; State v. Ferrell, 30 W. Va. 683; State v. Chisnell, 36 W. Va. 659; State v. Pendergast, 20 W. Va. 672. But under the act pertaining to the selling of liquor to minors without their parent’s consent it was held that the offence was an injury to third persons and that the name of the minors, if known, should have been stated, and the indictment stating that the sale was made to minors whose names were unknown to the jurors, it is a fatal variance between the proof and the indictment if the evidence shows that the names of the minors were known to the jurors. Morgenstern’s Case, 27 Gratt. 1018. See also the opinion of this case in which Com. v. Smith, 1 Gratt. 553 is distinguished.
      Averments of Quantity of Liquor Sold— Tlie Precision. Necessary. — The quantity of liquor need not be proved precisely as charged in the indictment. In Brock v. Com., 6 Leigh 634, the indictment states that the liquor sold was one and one-half pints of whiskey and it was held that proof of selling any quantity and any kind of intoxicating liquor was sufficient to support the indictment.
      Local Option District. — An allegation that the offence was committed in a local option district is not supported by proof that the liquors were sold by the defendant in the county, there being no proof identifying the district. Morgan v. Com., 90 Va. 80. See also Savage v. Com., 84 Va. 582. The court will take judicial knowledge of the adoption of a local option law. Thomas v. Com., 90 Va. 92; Hargrave v. Com., 22 S. E. Rep. 314; Morgan v. Com., 90 Va. 80.
      Illegal Gift on Election Day. — In charging an unlawful gift of spirituous liquor on election day, it is not necessary to state the facts constituting the person to whom the liquor was given a qualified votei, nor is it necessary to allege any special criminal intent. State v. Pearis, 35 W. Va. 320.
      Manner oí Sale — Necessary Allegations.— In Boyle v. Com., 14 Gratt. 674, it was held that an indictment under the statute Va. Code, 1849, page 209, sec. 18, providing a fine for the retailing of wines, etc., to be drunk where sold must allege that the selling was by retail. See also Arrington v. Com., 87 Va. 96. But in Savage v. Com., 84 Va. 619, it was held that an indictment under the local option law providing generally for punishment for the sale of any intoxicating liquors in districts voting against license, the indictment need not charge that the liquor was sold by retail or wholesale or at any particular place.
      Local Option Law — Prosecution under* General Law. — In Webster v. Com., 89 Va. 154, it was held that in a county where the “local option law” has been adopted, the sale of liquor without license is none the less liable to prosecution as a violation of the general liquor laws.
      Same — Irregularities in Election. — Parol evidence is admissible on an application for a liquor license in a county in which a local option election had been held, to prove that notice of the election had not been posted. Haddox v. County of Clarke, 79 Va. 677.
      .Joinder of Offences — Separate Courts — 1 Election. — Several misdemeanors of the same nature and upon which the same or similar judgments may be renaered may be united in the same indictment under separate courts. Mitchell v. Com., 93 Va. 775; Peer’s Case, 5 Gratt. 674; Lewis v. Com., 90 Va. 843. In cases of indictments charging several misdemeanors of the same general character in separate counts the prosecuting attorney will not be compelled to elect between them. Mitchell v. Com., 93 Va. 775.
      Information — Conviction for Second Of-fence. — Under the act of 1 Rev. Code 1792, which provides that persons having been convicted of retailing liquors who shall afterwards be guilty of the same offence and convicted thereof shall receive an increased punishment, a judgment as upon a second conviction should not be rendered in a case where a defendant is convicted on the same day under each o-f two informations for retailing spirituous liquor, the second information not alleging that it is for a second offence, after a conviction for a similar offence. Com. v. Welsh, 2 Va. Cas. 57. See also Rand v. Com., 9 Gratt. 738 and White v. Com., 79 Va. 611.
      Omission — Presentment—Information.—In Com. v. Chalmers, 2 Va. Cases 76, it was held that a motion in arrest of judgment should be overruled where the information made the averment of “without license” though the presentment omitted to do so, the defendant having pleaded “not guilty” to the information and a verdict having been rendered against him after trial.
      Selling: Lianor to Minors — Evidence.—In a proceeding under sec. 560 of the Code, to revoke a license to sell whiskey on the charge that defendant had been guilty of selling liquor to minors, it is competent to offer in evidence a number of indictments found in the same court against the same defendant for selling liquor to minors and also to receive the evidence of a minor that, within twelve months prior to the time when the license sought to be revoked took effect the said minor had purchased intoxicating liquor of the defendant. The whole matter being heard and determined by the court it is not confined to the strict rules of evidence which obtain upon the trial of an issue before a jury, but great latitude is allowed the court that it may be satisfied whether or not it had intrusted the sale of liquor to an unfit person or whether the privilege granted has been abused. Lil-lienfeld v. Com., 92 Va. 818.
      Rigrht of Contestant to Appeal. — In Ailstock v. Page, 77 Va. 386 and Ex parte Lester, 77 Va. 663, the court expressly overrules* Leighton v. Maury, 76 Va. 875, so far as that case decides that the contestant is such a party in interest that he is entitled to an appeal or writ of error. In Ex parte Lester, 77 Va. 663, it was held that under the Act of 1882 the appellant may appeal to the circuit court or he may upon bill of exceptions taken at the trial apply to the circuit court for a writ of error and supersedeas; and if the circuit court also erroneously refused the license, its decision is reviewable by the Supreme court upon appeal, or writ ot error and supersedeas as in other cases; the applicant is a party directly in interest in the decision refusing the license and comes within the letter of Code 1873, ch. 178, sec. 2, but this is not true of the contestant who cannot appeal. £>ee also Haddox v. County of Clarke, 79 Va. 677.
      Same — Same—Present Law. — Under Acts 1883-4, 605, application for license to retail liquor must be made to the county court, and either applicant or defendant may appeal of right from the decision to the0 circuit court, where the application is heard de novo, and no appeal lies to the decision of the latter court.
      Proceeding to Revoke Liquor License— It Is Not a Criminal Proceeding:. — In Cherry v. Com., 78 Va. 375, it was held that it was not the intention of the legislature to require in proceedings to revoke liquor licenses under sec. 106, chap. 206,. Acts 1874-5, p. 244, the application of the strict and technical rules applicable to indictments, that in such proceedings the defendants are competent to testify in their ovyn behalf, as the proceedings are not criminal in their nature. It was held further that such proceedings may be on the motion of any other person as well as the commonwealth’s attorney anu the defendant is not entitled to trial by jury. The object is not punishment but revocation of privilege and it is no bar to the proceedings that it is founded on some act or offence of which the defendant has been formerly convicted, citing Davis v. Com., 75 Va. 944. See Lillienfeld v. Com., 92 Va. 818, for what is a sufficient notice in such proceedings.
      Writ of Error for Commonwealth. — In Com. v. Scott, 10 Gratt. 749, it was held that in a prosecution for selling liquor by retail to be drunk at the place where sold, a writ of error lies for the commonwealth from the judgment of an inferior court, the case coming within the statute, Va. Code 1887, chap. 198, sec. 4052, providing that a writ of error shall lie for the commonwealth if the case be for the violation of a law relating to the revenue.
      Former Jeopardy. — Prosecution for selling liquor on Sunday contrary to Code, sec. 3804, is no bar to prosecution for selling same liquor without license contrary to Acts 1889-90, p. 242, sec. 1. Arrington v. Com., 87 Va. 96.
    
   MoncurE, P.

This is a writ of error to a judgment of the hustings court for the city of Richmond, rendered on the 13th day of May, 1878, convicting the *plaintiff in error, C. Thon, of a misdemeanor, on an indictment which had been found against him and endorsed “a true bill” by a grand jury of the said city.

It was charged in the indictment that “C. Thon, within twelve months last past, in the year one thousand eight hundred and seventy-eight, at the said city and within the jurisdiction of the said hustings court of the city of Richmond, in the bar-room of him, the said C. Thon, there situate, between twelve o'clock on Saturday night of the week and sunrise of the succeeding Monday morning, unlawfully did sell intoxicating drinks, against the peace and dignity of the Commonwealth of Virginia.”

A summons to appear and answer the said indictment on the 23d day of April, 1878, having been duly issued and returned “executed” on the defendant, he accordingly appeared and moved the court to quash the indictment for errors apparent on its face. And the court, after taking time to consider the said motion, and considering it accordingly, on the 27th day of April, 1878, overruled the same, to which action of the court the defendant excepted, and the case was continued till the next term of the court.

At which time, .to-wit: the 13th day of May, 1878 (being the same day and year first hereinbefore written), the said defendant again appeared, and being arraigned of the said offence, tendered to the court a special plea in abatement, in writing, verified by his affidavit, and the said plea being seen and inspected, the attorney for the Commonwealth moved the court to reject the said plea, and the court sustained the said motion and rejected the said plea.

The defendant being then required to plead to the said indictment, pleaded not guilty to the same; and thereupon a jury being sworn to try the issue joined on said plea, and having heard the evidence and arguments *of counsel, returned a verdict in these words: “We the jury find the prisoner guilty, and assess his fine at ten dollars.”

The defendant thereupon moved the court to set aside the said verdict, on the ground that the same was contrary to the law and the evidence, and upon the ground that the court had no jurisdiction to hear and determine the cause, and also for errors apparent upon the record, and grant him a new trial; which several motions the court overruled.

The defendant then moved the court in arrest of judgment upon the said verdict; which motion the court also overruled.

Whereupon it was considered by the court that the said C. Thon pay and satisfy the said fine of ten dollars, the sum assessed by the jury in their verdict aforesaid, together with the costs of the prosecution. And it was ordered that he be committed to the jail of said city until said fine and costs be paid or he be otherwise discharged by due course of law, such confinement not to exceed six months.

Five bills of exceptions were taken by the defendant to opinions given by the court against him in the progress of the trial, which will be noticed in. this opinion as far as necessary.

The defendant applied to a judge of this court for a writ of error to the said judgment; which was accordingly awarded..

The- act of assembly on which the conviction in this case was had is the act approved March 6,. 1874, entitled “an act prohibiting the sale of intoxicating .liquors on the Sabbath day.” Acts of Assembly, 1874, p. 76, ch. 83. It enacts “that no intoxicating drink shall be sold in any bar-room, restaurant, saloon, store, or other place within the limits of this commonwealth from 13 *o’clock on each and every Saturday night of the week until sunrise of the succeeding Monday morning; and any person violating this act shall be deemed guilty of a misdemeanor, and, if convicted, shall be punished by a fine not less than ten nor more than five hundred dollars; and shall moreover, at the discretion of the court, forfeit his license: provided that this law shall not apply to any city having police regulations on this subject and an ordinance inflicting a penalty equal to the penalty inflicted by this statute.”. -

The only defence relied on by the defendant in the prosecution was that the said law does not apply to the city of Richmond, because it has, within the true intent and meaning of the said proviso, police regulations on the subject and an ordinance inflicting a penalty equal to the penalty inflicted by the said statute.

All the bills of exception taken and made a part of the record in the case were intended to present the said defence, and they need not therefore be set out in detail. .The defence was certainly presented properly, in some if not all of them.

The police regulations and ordinance relied on in the said defence as preventing the application of the said law to the city of Richmond is the 13th section of chapter 44 of City Ordinances 1875. p. 245, the title of which said chapter is “Concerning Various Nuisances,” and which said section is in the words following, to-wit:

“13. Every hotel-keeper and keeper of a restaurant, lager beer saloon, or other place where ardent spirits, beer, cider, or other drinks are sold or given away, shall close the bar where such drinks are sold or given away every Sunday during the whole day. At all times when such bar shall be open, the license under which the business is conducted shall remain posted in some conspicuous place in the bar-room. And any person violating any -'provision of this section shall be fined not less than ten nor more than five hundred dollars.”

An ordinance in the same words, except as to the amount of the fine, had long been in force in the said city at the time of the passage of the said act of assembly. It is contained in the 13th section of chapter 46 of City Ordinances 1869, p. 239, the title of which chapter is: “Concerning Nuisances not in Streets.” The fine prescribed by that ordinance was “not less than twenty nor more than fifty dollars.” On the 23d day of March, 3 874, the said ordinance was amended as to the amount of the fine, so as to make it “not less than ten nor more than five hundred dollars;” being the same amount prescribed by the said act of assembly. It seems that the said ordinance, as so amended, has since continued to be and is still in force, and that, except as to such amendment, it continued in force from the time of its first adoption — certainly from the time of the publication of the'City Ordinances in 1869. It was argued that the object of the said amendment was to bring the said ordinance within the meaning of the said proviso, which is not at all unlikely.

Now, does the ordinance, as it now stands, come within the meaning of the proviso contained in the act of the assembly? That is the question, and and the only question, we have now to consider.

Certainly it ought plainly to come within the meaning of the said proviso to have that effect. The body of the act is plain in its terms, and embraces in its operation the whole “limits of this commonwealth.” It is not pretended that the accused did not commit the act described in the body of the law, and did not incur the penalty therein prescribed, unless he can be saved from the operation of the said law by means of the said proviso.

If the proviso had plainly declared that the law should not apply to any city having police regulations and an Ordinance to the same effect with the body of_ the law, both as to the definition of the crime and the nature and measure of the penalty, there would perhaps have been nothing unreasonable in the law, and certainly no room for doubt as to the meaning of the legislature. The plain intention in that case would have been that the same penalty should be inflicted on the commission of a like offence, whether committed in a city or in the country; but if committed in a city with such police regulations and such an ordinance, they and not the body of the act of assembly should apply to the case. There would be nothing unequal nor unreasonable in such an effect.

But if the proviso had plainly declared that the law should not apply to any city having police regulations and an ordinance not to the same effect with the body of the law, either as to the definition of the offense, or as to the nature and measure of the penalty, such an effect would have been very unequal and unreasonable, even if such a law would have been valid; a question which need not be here decided.

Certainly, however, it may be here laid down that police regulations and an ordinance ought plainly to come within the meaning of the proviso when the effect would be so unequal and unreasonable.

The ordinance was ordained many years before the enactment of the law, and of course without reference to the terms of the law, which was not then in existence. The law was framed without reference to the ordinance, and probably without any knowledge on the part of its framers of the terms, if not of the very existence, of the ordinance. The expressions in each are very different, both in form and substance, though both related to the violation of the Sabbath, and the prevention of intemperance and disorder on that day. The person contemplated by the ordinance as the person on whom it was intended *to operate is “every hotel-keeper and keeper of a restaurant, lager beer saloon, or other place where ardent spirits, beer, cider or other drinks are sold or given away,” who is required by the ordinance to “close the bar where such drinks are sold or given away, every Sunday during the whole day. And it directs that at all times when such bar shall be open the license under which the business is conducted shall remain posted in some conspicuous place in the bar-room. On the other hand, the act declares that no intoxicating drink shall be sold in any bar-room, restaurant, saloon, store or other place within the limits of this commonwealth irom 33 o’clock on each and every Saturday night of the week until sunrise of the succeeding Monday morning.

Now, here are several material differences between the offence prohibited by the ordinance and the offence prohibited by the act. The former offence is that of keeping open on Sunday the bar where such drinks as are enumerated in the ordinance are sold or given away; and also that of not keeping posted in some conspicuous place in the bar-room, at all times when such bar shall be open, the license under which the business is conducted. The latter offence is that of selling any intoxicating drink in any bar-room, restaurant, saloon, store or other place within the limits of this commonwealth from 12 o'clock on each and every Saturday night of the week until sunrise of the succeeding Monday morning. A person may violate the ordinance by keeping open on Sunday the bar where such drinks are sold, though he does not sell a single drink. The selling of a drink is not a necessary ingredient of the offence. But a person cannot violate the statute without selling an intoxicating drink, even though he should keep open “the bar where such drinks are sold or given away, every Sunday during the whole day.” The keeping open the bar. even for a single instant, is *not a necessary ingredient of the offence under the statute.

The fact obviously is that the two laws, city and state, were enacted diverso intuitu. The former was aimed at the offence of keeping open a bar-room on Sunday, while the latter was aimed at the offence of selling an intoxicating drink anywhere “within the limits of this commonwealth from 12 o'clock on each and every Saturday night of the week until sunrise of the succeeding Monday morning.” They were obviously enacted without any reference to each other. Of course the ordinance was enacted without reference to the ■statute, which was not then in existence; and the statute defines a very different offence from that which was defined by the ordinance. The attempt now made to make the two of-fences substantially the same must therefore fail It is said that the city council, by their amendment of the ordinance, made seventeen days after the enactment of the statute, intended thereby to supersede the statute. But whatever their intention may have been, they certainly had no power to supersede the statute as to the city, at least except in the very mode prescribed by the statute. That mode, evidently, was to define the same offence and prescribe the same punishment substantially in the ordinance as had been done in the statute. The council may have supposed that it was only necessary to make the penalty the same under each, and that they did so by prescribing the same amount of fine for the offence of violating the ordinance which had been prescribed for violating the statute. But did that make even the penalty the same? The statute not only prescribe a fine for the offence, but declares that the offender shall, moreover, at the discretion of the court, forfeit his license. If this forfeiture, at the discretion of the court, be considered *as a part of the penalty inflicted by the statute, then, clearly, the penalty inflicted by the ordinance, even as amended, is not equal-to the penalty inflicted by the statute. But it is not intended, because not deemed necessary, to decide that question in this case.

Without deciding whether or not the penalties for violating the ordinance and the statute are the same, it is enough to say that the offences under each are not substantially the same; and this we think we have already shown.

But in addition to what we have said on that subject, we have further to say, that the statute embraces a period which is not embraced in the ordinance — that is,- from twelve o’clock every Sunday night until sunrise of the succeeding Monday morning. No sale of intoxicating drink nor keeping open a bar during that period would be a violation of the ordinance, whereas a sale of such drink during that period at any other place than one governed by such ordinance would be -a violation of the statute. This would creatfe a palpable difference and inequality in the law governing different localities of the same State, and could never have been contemplated or intended by the legislature.

There s still another reason for saying that neither the offences nor the penalties defined and prescribed by the ordinance and the statute are substantially the same; and that is, that a person may be convicted and punished under the statute for every act of selling intoxicating drinks on the same day as for a different offence; whereas he can be convicted and punished under the ordinance of only one offence for not closing the bar where such drinks are sold or given away on “Sunday during the whole day.”

We. have fully considered the able arguments of counsel in this case, and also the able opinion of the judge of the court below who presided at its trial, but deem it ^unnecessary to notice them more in detail than we have already in effect done.

We are therefore of opinion that there is no error in the judgment of the court below, and that it ought to be affirmed.

Anderson and Staples, J’s, concurred in the opinion of MoncurE, P.

Christian and Burks, J’s,

concurred in the judgment,' though not in all the views presented in the opinion of MoncurE, P. They thought that the provisions of the statute and of the ordinance of the city of Richmond were substantially the same; but the penalty was not. The keeping a bar-room open one day was one offence under the ordinance, and for which only one penalty could be inflicted; whilst under the statute every sale is a separate offence, for which a separate penalty may be inflicted.

Judgment affirmed.  