
    THE STATE v. PLUNKETT.
    On Indictment.
    It is an indictable offence under the statute of New Jersey, to sell ardent spirits by a less measure than one quart, without license, within the hounds of the city of Newark, where by the charter and ordinances of the city, penalties are recoverable for such sale, without license from the city authorities.
    An offender against the statute, may in such case, be indicted in the Oyer and Terminer or Quarter Sessions, or proceeded against under the city ordinance.
    The defendant was indicted at the Oyer and Terminer in and for the county of Essex, for selling ardent spirits, in the city of Newark, by the small measure, without license, and contrary to the statutes &c.
    The defendant pleaded, guilty, subject to the opinion of the court, upon the question, whether, under the provisions of the Charter of the city of Newark, and the Ordinance of the Common Council of said city, made in pursuance thereof, the defendant is liable to indictment, conviction and punishment under the general laws of the state, for selling liquor without license, by a less measure than one quart, within the bounds of the said city?
    For the statute prohibiting the sale of ardent spirits, by a less quantity than one quart, without license, see Elm. Dig. 249, pi. 45-8.
    For the Charter of the city of Newark, see Elm. Dig. 652, sec. 14 and 17.
    By an ordinance of the Common Council of the city of Newark, entitled “an ordinance relating to inns, taverns, victualling houses, and retailers of spirituous liquors, and to prevent tip-ling,” passed it is amongst other things, ordained as follows: First, That no person shall carry on the business of an inn or tavern keeper, victualler or retailer of spirituous liquors, without a license previously obtained, as therein provided for, under the penalty of fifty dollars for each offence. Secondly, That no person shall be licensed, to retail spirituous liquor, but in connection with the business of an inn or tavern keeper or victualler; and thirdly, That if any .person not licensed under the provisions of that ordinance, shall sell, dispose of <fec., by less measure than one quart, any distilled or ardent spirits &c.; or having sold a quart or any greater measure, shall permit the same to be drunk in or upon his or her premises, such person shall be subject to a penalty of ten dollars, for the first offence; fifty dollars for the second; and four days imprisonment for every subsequent offence.
    By the forgoing ordinance, the Common Council have legislated very fully and at large upon the subject of inns, taverns, victualling houses and the retail of spirituous liquors, the granting of licenses, and prescribed various penalties for violations of its provisions.
    The defendant had not obtained any license under the city authorities, nor been sued for, or subjected to any penalties for selling the liquor in question contrary to the said ordinance : nevertheless it was insisted, that the defendant is amenable only to the Common Council of the city of Newark, for the offence charged in this indictment, and is not liable to indictment and punishment in the court of Oyer and Terminer.
    The court of Oyer and Terminer having suspended judgment, in order to obtain the advisory opinion of this court, in the matter; it was argued this term, (May term, 1840) by John Chetwood and A. Whitehead for the defendant; and by R. S. Field, Attorney General, for the state.
   The opinion of the Court, by

Hornblower, C. J.

The doctrine contended for by the counsel for the defendant, would sweep from the jurisdiction of the State Courts, a very large portion of offences against the laws of the state. Selling ardent spirits without license, keeping disorderly houses, gambling, riots, nuisances; larcenies committed at fires; selling unwholesome meats in market, and a variety of other crimes, if committed within the city of Newark, and some other incorporated towns in this state, would cease to be indictable and punishable in our state courts. Such a result must not be reached by any doubtful construction. It involves a question of too serious import to the sovereignty of the state, and the peace and well being of the community at large, to be settled upon technical principles, or to be deduced by mere implication of law. It is true, in Perrine v. Vannote, 1 South. 146, it was strongly intimated by Chief Justice Kirkpatrick, and afterwards decided by this Court, in Buckallew v. Ackerman, 3 Halst. R. 48, that the act of 1804, making the sale of ardent spirits, without a license, an indictable offence, was by implication of law, a repeal of the pre existing act, by which a penalty of ten dollars, was imposed on any person selling such liquor without license. The court in coming to that decision, proceeded upon the maxim, ‘ leges posteriores priores contrarias abrogant Dr. Foster’s case, 11 Co. 56; but the application of that maxim to this caso, whether appropriately made to the one just mentioned, or not, would not help the defendant; for it so happens, that the charter of the city of .Newark, was passed in 1836, and the act under which the defendant is indicted, was passed in 1838, and the principle carried out, would by implication, repeal so much of the charter, as gives to the city authorities the power to regulate the sale of liquors, and to punish infractions of such regulations, within the city bounds. But the case is clear of any such difficulty or question: the two statutes may well stand together, and it is sufficient in this case to say, that if the defendant had taken out a license under the Common Council, to sell ardent spirits by the small measure, he could not have been indicted : but if “ without license for that purpose first had and obtained ” from some authority legally competent, to grant such license, he did sell ardent spirits by the small measure, then he violated the act of Assembly, Elm. Dig. 249, sec. 5, and was liable to be indicted. Whether he may also be proceeded against by the city authorities, for selling this liquor, within the city bounds, contrary to their ordinance, is a question we need not now discuss or determine.

The opinion of this court therefore is, and they so advise the court of Oyer and Terminer of the county of Essex, that the defendant is liable to indictment and conviction for the offence charged against him; and that they ought, upon his plea of guilty, to proceed to judgment according to law.

The Oyer and Terminer advised to proceed to judgment &c. against the defendant.  