
    ERIE OYER AND TERMINER.
    The People agt. Leon Tiphaine.
    The Revised Statutes enact that, “ Whoever shall sell any strong or spirituous liquors, or any wines, in any quantity less than five gallons at a time, without having a license therefor granted, as herein directed, shall forfeit twenty-five dollars. (1 R. S. 680, § 16.)
    fl AU offences against the provisions of this title shall be deemed misdemeanors, punishable by fine and imprisonment." {Id. 682, § 25.)
    These provisions of the Revised Statutes are now in full force and effect. Boards of excise may grant licenses; and all sales of strong or spirituous liquors, or wines, in any quantity less than five gallons at a time, without a license therefor granted, as directed in the Revised Statutes, are unlawful.
    
    Erie,
    
      Sept, 1856.
    Demurrer to indictment.
    The indictment contains numerous counts, which are generally framed under the Revised Statutes relating to excise, and the regulations of taverns and groceries. All of the counts charge the sale of spirituous liquors, without being licensed thereto according to law, and some of the counts allege the sale in quantities less than five gallons. No objection is made to the form of the_counts. The demurrer is general.
    A. Sawin, for people.
    
    F. J. Fithian, for defendant.
    
   Marvin, Justice.

"Whoever shall sell any strong or spirituous liquors,, or any wines, in any quantity less than five gal-Ions at a time, without having a license therefor granted, as herein directed, shall forfeit twenty-five dollars.” (1 Rev. Stat. 680, § 15.)

All offences against the provisions of this title shall be deemed misdemeanors, punishable by fine and imprisonment.” (Id. 682, § 25.)

Are these provisions of the Revised Statutes in force I

There is published, in the volume of Session Laws of this state for 1855, what purports to be “ An Act for the Prevention of Intemperance, Pauperism and Crime.” (Chap. 231.) In the 24th section it is declared, “All acts and parts of acts, and all charters and parts of charters, inconsistent with this act, are hereby repealed.”

The provisions of the Revised Statutes, above quoted, are inconsistent with the so-called act of 1855. The latter act assumed to provide an entirely new system, as a substitute for the system of the Revised Statutes touching the sale of liquors. By the first section the sale of intoxicating liquor is prohibited generally, except as thereinafter provided. This prohibition includes all intoxicating liquors, without regard to quantity. The Revised Statutes had no relation to strong or spirituous liquors in quantities exceeding five gallons.

The second and third sections of the act of 1855 assume to regulate the sale of intoxicating liquors. The fourth section makes a violation of the provisions of the preceding sections a misdemeanor, and inflicts penalties, &c. The recent decisions of the court of appeals, in effect, pronounce these four sections of the act of 1855 unconstitutional.

Judge Selden says, “ The conclusion to which I am thus brought, is necessarily subversive of the first four sections of the law in their present form.”

I shall not remark further upon the decisions of this court, or the opinions delivered; but shall proceed upon the ground that the first four sections are in conflict with the constitution, and that they are, therefore, void. What will be the consequence of this position 1 These sections contained the substitute’ for the prohibitions and licensing system of the Revised Statutes, and they were inconsistent with the provisions of the Revised Statutes. If the provisions of these four sections were valid and obligatory as law, they necessarily abrogated the provisions of the Revised Statutes. It may be said, perhaps, that they were not inconsistent with the general prohibition contained in § 15. That section impliedly permitted the Sale of spirituous liquors in quantities exceeding five gallons. The prohibition in the act of 1855 extended to all intoxicating liquors without regard to quantity. By § 15 of the Revised Statutes, the sale was unlawful only when made “ without having a license therefor, granted as therein directed ;” and the act of 1855 assumed to abrogate the license system, as provided in the Revised Statutes. In short, had the first four sections of the statute of 1855 been valid, no action or indictment could have been based upon •§ 15 of the Revised Statutes. As these four sections, containing, the system substituted for, and inconsistent with the Revised Statutes, are, however, null and void, having no force as law, how can it be said, in a judicial and legal sense, that they are inconsistent with the provisions of the Revised Statutes?

“All acts inconsistent with this act are hereby repealed.” What is the meaning of “this act?” What construction shall be given to those words? Shall we say that they include all the language and provisions contained in what professes to be “ An Act for the- Prevention of Intemperance, Pauperism and Crime?” If we-adopt this mode of construction, the provisions of the Revised Statutes are abrogated. In my opinion, this is not the proper construction If the legislature has made a prohibition in the form of a statute, which it was not authorized by the constitution to enact as a statute, it is not a statute—it is not a law. The legislative power is vested in a senate and assembly; but this power is not unlimited. It is restricted by the fundamental law ■which the people themselves have enacted—to wit, the constitution. The legislature, in exercising the power conferred, enact laws, and the law is called a statute, or, “ an act.” When the legislature transcends its power, their acts or doings are void; and whatever language they may have used, and in whatever form they may have put it, they have not succeeded in bringing into existence “ an act.” Law is a rule of action: municipal law is a rule of civil conduct prescribed by the supreme power in the state. (1 Bl. Com. 44.) The laws consist of the unwritten laws, common laws, and of the written, or statute law.

Blackstone says, the written laws of the kingdom are statutes, acts, or edicts. (1 V. 85.) Act, in legislation, is a statute or law, made by a legislative body, as an act of congress is a law by the congress of the United States; an act of assembly is a law made by a legislative assembly. (Bouv. L. D. Act.”) Acts are general or special, public or private. All legislative acts are laws; and if not laws, then they are not acts of legislation. In my opinion it is important so to regard the words, “ this act,” when used in that clause of a statute repealing all statutes or acts inconsistent with it. If this construction is not given, very strange and anomalous results may follow, and it may often be difficult to determine what the state of the law is. Suppose the legislature attempts legislation touching a subject already embraced by the law, and declares, that all statutes or acts inconsistent with it are repealed, and it is held that the entire act is unconstitutional and void, would it be claimed that the prior acts had been affected by the repealing clause ! If so, the legislature, without designing it, might leave the whole subject of the prior act, or acts, without any law whatever. Indeed, such would be the effect in reference to the subject we are considering. Now, there is not a man in the whole state who supposes that the legislature had any intention of repealing the Revised Statutes relating to excise and the regulation of taverns and groceries, and substitute nothing in their stead.

If a statute repeals a prior statute, and then a subsequent statute repeals the repealing statute, the statute first repealed is at once revived. This is the common-law rule—and why! The repealing act being annulled—struck out of existence—it is as though it had never been. Now, in the present case, strike out the unconstitutional provisions in the act of 1855, and there will be nothing in the Revised Statutes touching ex-else, &c., inconsistent with all that shall remain in the acts There will be some remainder,.though small. It contains some new provisions which do riot conflict with anything in the Revised Statutes, and which are not in conflict with the constitution. In my opinion, it would be extremely dangerous to adopt any other mode of construction when applied to our system of legislation, where the constitution is a law to the legislature; and when they exceed their power, all their acts and things are void. Before we can say that any of the valid binding laws of the state are inconsistent with another law, we must know and hold that such other law has been enacted, and that it is valid and binding. This must be so, not only in relation to statutes, but also in relation to any attempt to change the common law.

Without pursuing this question further, in my opinion, the proper judicial and legal construction of the words, “this actj” as used in § 24 of the statute, will include only such provisions of the act as are constitutional. And as there will remain nothing in the act inconsistent with the provisions of the Revised Statutes, upon which most of the counts in the indictment are founded, it follows that the demurrer is not well taken. Some of the counts are good, and the demurrer is general. We might stop here. The indictment, however, contains some counts in which the averment, “in a quantity less than five gallons,” is omitted. The counts, all contain the averment of sale without any lawful authority, admission or allowance, and without being licensed thereto or therefor according to law. Enough has been said to show that sales of intoxicating liquor in quantities exceeding five gallons is not unlawful. Those counts in which the allegations of sale in a quantity less than five gallons are omitted, are not good.

It has been argued, that all sales in quantities less than five gallons are unlawful; and that, as the law now is, there is no authority to license the sale. This latter position is important, and I shall briefly consider it. As we have already seen, the prohibition, in the Revised Statutes, of sales in quantities less than five gallons, is not unqualified, The sale, “ without haying a license therefor, granted as herein directed,” is prohibited. The statute provided a licensing system. Is that system abrogated1? It is claimed, that it is in express terms, and that the effect of all the legislation, and the decisions of the court of appeals, is, that all sales in quantities less than five gallons are unlawful, and that there is no authority anywhere to license or permit sales in small quantities. If this is so, a result has certainly been produced never anticipated by the legislature, or any man in the state. The legislature, in the act of 1855, undertook to confer the right to sell in any quantities upon certain persons, who should comply with the provisions of the act, as specified in the several sections. This section has fallen by the decision of the court of appeals.

By the 25th section of this act it is declared, that “no license to sell liquor, except as herein provided, shall be hereafter granted.” This provision is undoubtedly clear and express, and would require no construction but for the facts aside from itself.

If the act had provided for granting licenses, then, undoubtedly, all other licenses vrould be prohibited; but it turns out that the act contains no provisions for granting licenses: I mean, of course, no valid provisions, as the court of appeals have held that those sections of the act declaring who may sell, and under what circumstances, are void. The legislature refer to those provisions inaccurately as authorizing licenses. Their meaning is sufficiently obvious in this respect, and I will not remark upon the inaccuracy. But as, in law, no provision is made in the act authorizing licenses, or sales at all in any quantity, what construction shall we give to this provision of the act?

Shall we leave out the exceptions, and read it thus: “ No license to sell liquor shall hereafter be granted.” No one can fail to see that this would be' directly contrary to the intention of the legislature. The great leading and fundamental rule for the construction of statutes is to ascertain the intention of the legislature. It is often necessary to examine with care, and to consider the entire act, and sometimes previous and contemporaneous legislation, for the purpose of ascertaining the intentions of the legislature. In the present case, the intention of the legislature was obvious enough. They designed to substitute a new system for the old licensing system—and they supposed they had ; but there was an entire failure to accomplish the object or intention. They did not intend to abrogate the old license system, and leave nothing in its .place. The actual intention of the legislature has failed, and cannot be carried into effect; and,'in my opinion, this provision in relation to licenses should be held to be nugatory.

In examining wills, if the intention of the testator cannot be ascertained, the will is void for uncertainty. So, if the intention is ascertained, but it violates well settled rules of law; or if it be impossible to carry the intention into effect, the will is void.

In the present case, we have a right to look into the unconstitutional provisions of the act to which the legislature refer in the exception in § 25, for the purpose of ascertaining their intention, and having ascertained it, we find that it cannot be executed or carried into effect. I submit, that the whole provisions affected by the exception must fall. (1 Seld. 409.)

The position here taken may, I think, derive support, by way of analogy, by reference to the well settled rules in relation to the revocation of wills. If the intention of the testator to revoke his will is expressly declared in an instrument, and it appears that such intended revocation is only subservient to another purpose, for which the instrument is incompetent, there will be no revocation.- (7 Ves. 379; Williams on Executors, title Revocation of Wills; Restell agt. Moore, 2 Devereux & Battin, 311; Jones agt. Jones, 2 Devereux Equity R. 392; Laughton agt. Atkyns, 1 Pick. 543; Winsor agt. Pratt. 6 Eng. Common Law, 303.)

It is safer to adopt this course than to speculate as to what would have been the intention of the legislature, or what the legislature wmuld have declared touching licenses, in the absence of the provisions which they inserted in the bill, in relation to sales.

The courts have- no power to legislate. Their province is simply to declare the law, as legally enacted; and if the legislature, for any cause, has failed to make itself understood, or, being understood, its intention is in conflict with the constitution, the courts are to say so, and the attempted legislation is a failure.

I repeat, the intention of the legislature is clear enough. They say, that certain persons may sell liquor, and they refer to this as a license, and then, in effect, say that no other license shall be granted. The system of sales, provided by the legislature, was a nullity. We know that they did not intend to abolish all sales in quantities less than five gallons. If we now hold, as the effect of the legislation, that all sales in quantities less than five gallons are unconditionally prohibited, we shall hold in direct conflict with the known intention of the legislature, as evinced in the Revised Statutes and the act of 1855. This, in my opinion, would be judicial legislation.

I think we should hold that the intention of the legislature, touching “the question we are considering, cannot be carried into effect, as the provisions of the statutes, evincing that intention, are in conflict with the fundamental law.

In my opinion, no effect can be given to that part of § 25 declaring, that ' " No license to sell liquor, except as herein provided, shall hereafter be granted." The result is, that the Revised Statutes relating to licenses, are in full force. The board of excise may grant licenses, and all sales of strong or spirituous liquors, in any quantity less than five gallons at a time, without having a license therefor, granted as directed in the Revised Statutes, are unlawful.

The demurrer must be overruled, and there mustbe judgment for The People upon those counts which are good, as herein declared. 
      
       Note.—This opinion has been published in some of the newspapers at Buffalo, and has fallen under the observation of many of the legal profession in western New-York, who, it is understood, very generally pronounce it correct and sound.—Reporter.
     