
    *Samuel Clemmons v. The Commonwealth.
    November, 1828.
    Statute — Regulation of Ordinaries — Construction.—The 13th section of the Act. for regulation of Ordinaries, &c. is not to be construed as permitting persons. from the produce of whose estate ardent spirits are made, or Distillers, to retail them, to be drank at the place where sold.
    This was an application for a Writ of Error to a Judgment of the Superior Court of Law for Harrison County. The petitioner was indicted for selling, by retail, without having a license therefor, whiskey and other ardent spirits, at his dwelling-house, to be drank at the place where sold. On the trial, he moved the Court to instruct the Jury, that if, from the evidence, they believe that the liquor charged to have been sold by retail by the Defendant, was the produce of the Defendant’s own estate, or distilled by him, it was lawful for the Defendant to retail the same, to be drank where sold, without first obtaining a license therefor; which instruction the Court refused to give, and he excepted to that opinion. The Defendant was then found guilty by the Jury, and the Court rendered Judgment against him for the fine of $30, and required him to enter into a recognizance, himself in the sum of $100, and a surety in the same sum, conditioned for his good behaviour for one year; which was done. Act of Assembly (2 Rev. Code, p. 282,) under which he was indicted, is as follows:
    “Sec. 8. If any person, without such license,” (that is, such as is provided for by the first section,) “shall open a tavern, or sell bv retail, wine, rum, or brandy, or other ardent spirits, or a mixture thereof, to be drank in, or at the place where it shall be sold, or in any booth, arbor, or stall, such offense shall be deemed a breach of good behaviour, and he or she, so offending, shall moreover forfeit and pay the sum of thirty dollars, to the use of the Commonwealth, &c.”
    “Sec. 13. Provided, always, That nothing in this Act shall extend to be construed to prohibit any person or persons from retailing such liquors as shall actually have been *made from the produce of such person’s own estate, or brewed or distilled by him, her or them, or those in his, her or their employ; nor to prohibit any merchant, or person keeping store for the sale of merchandise, from retailing liquors, so that such liquors be not drank or intended to be drank, at the house or plantation where the same shall be sold.”
    Duncan, Counsel for the petitioner, sent in a written argument.
    He contended, that in order to constitute the offence created by the Sth section, it is not merely necessary that there should be a selling by retail without a license, but that the liquor should be sold “to be drank in, or at the place where sold.” Any person may sell liquor by retail without incurring the penalty provided the liquor was not sold to be drank in, or at, the place where sold.
    The 13th section was in part intended to create an exception in favor of the grower, and distiller of grain converted into liquor. It certainly could not have been contemplated by the Legislature, by the enactment of the 13th section, that it was oniy a permission to the grower and distiller to sell their liquors by retail, provided it was not sold to be drank where sold; for, this was a permission which they in common with every person enjoyed under the 8th section: That an exception, exclusively in favor of the grower and distiller, was intended by the 13th section, is manifest; and he contends, that the liquor, (the produce, &c.) may be sold by them to be drank where sold, without incurring the penalty created by the 8th section. If such is not the proper construction of the 13th section, then the grower and distiller are left exactly where the 8th section placed them, and the 14th section is unnecessary and useless. This would be adopting a principle of construction, which the Courts ought to avoid.
    Note by the Reporter. — The nse of the word ‘ ‘plantation, ” in the latter part of the thirteenth section, seems to prove that the restriction on the right of retailing' liquors therein imposed, is not to be confined to merchants who do not usually live on plantations, but is applicable to farmers, from the produce of whose plantations, whiskey and other ardent spirits are made.
    The difficulty in construing the Statute, has arisen from the clause in the 13th section relating to merchants, *and the limitation that succeeds it, viz: 4‘So as such liquors be not drank, or intended to be drank, at the house or plantation where sold.” It is supposed that the merchant, and the grower and distiller, were to be placed on the same footing, and that the limitation was intended to apply to all of them. That this is not correct, is already shown by the fact, that such a construction would render the 13th section .useless, as the persons embraced by it would in that event be in the same condition as if that section had not been enacted.
    He contended that, with reference to the grammatical construction of that section, the limitation was intended to operate on the merchants only; and there is good reason for this. The merchants’ license permitted sales by retail of goods, wares and merchandises, of foreign and domestic growth, containing no restriction as to the «quantity sold, or the use to be made of it. The privilege embraced foreign and domestic liquors: the merchant could, therefore, under his license, sell liquors by retail, to be drank any where. This privilege was, or might be abused: it was an interference with the regular tavern-keeper; to prevent which, and to prevent stores from becoming tippling-houses, and from principles «of general policy, and for the revenue, the Legislature deemed it necessary to impose a restriction upon the privileges exercised by the merchants under the merchants’ license, and hence the enactment was made, which constitutes a part of the 13th section.
    By giving that section the operation here contended for, the grower and distiller have a privilege conferred upon them, which otherwise they would not have, and the privilege of the merchant would be restricted, thus giving an effect to all parts of the section, and that effect entirely consistent with the general provision of the Statute: and we thereby avoid a construction which would declare an entire section of the Law to be utterly useless.
    The Court, after a conference on the subject refused the Writ of Error.
   ^SUMMERS, J.

delivered the opinion of the Court.

Clemmons was indicted for retailing whiskey, and other ardent spirits, and mixtures thereof, to some person to the Jurors ■unknown, to be drank at the place where sold, without first obtaining a license as prescribed by Law. On the trial of the cause, he moved the Court to instruct the Jury, that, if they were satisfied from the evidence that the liquor charged to have been sold by retail as aforesaid, was the produce of his own estate, or distilled by him, it was lawful for him to retail the same, to be drank where sold, without obtaining a license. This instruction the Court refused to give, and an exception was taken, and this application is to correct the supposed error.

The Counsel of Clemmons insists, that the proviso of the 13th section of the Act regulating Ordinaries, exempts persons retailing ardent spirits made from the produce of the vendor’s own estate, or distilled by him, from the prohibitions contained in the eighth section of the same Act, although sold to be drank at the place of sale. Such interpretation would evidently defeat the intention of the Legislature, as deducible from the whole Statute. This proviso was intended to secure to agriculturalists, distillers and merchants, the right of retailing ardent spirits, under the particular circumstances therein mentioned, without being licensed as Ordinary-keepers, provided such sales were not made subservient to the vice of tippling, which it was the object of the Legislature to suppress.

The words, “so as such liquor be not drank at the house or plantation where the same shall be sold,” in the thirteenth section, are therefore to be regarded as applying to each description of persons previously enumerated therein. It is contended, that this interpretation renders the entire proviso nugatory, as the Act contains no provisions inhibiting the sale of ardent spirits, not to be drank where sold; but this result is produced by the very terms of the section under consideration, as to merchants, and although somewhat in-artificially expressed, does not *admit of a different application in favor of the other enumerated classes. This proviso probably had its origin in the abundant caution of the Legislature to prohibit the mischiefs about which they were enacting, and should be left in operation, rather than defeat their clearly expressed objects. Application over-ruled.  