State v. Otis , 42 N.H. 71 ( 1860 )

Doe, J.

The Revised Statutes (ch. 113, sec. 9) -provide that “ if any person shall be found drunk in any street, alley, or other public place, * * * such person shall be punished therefor.” Section 15 of the same chapter provides that the punishment shall be fine or imprisonment.

The law of 1855 (ch. 1658, sec. 9) provides that “ if any person shall be found in a state of intoxication in any highway, street, court-house, town-house, or other public building or place, or shall be found in a state of intoxication in his own house, or other private building or place, disturbing the public or domestic tranquility,” “he may be punished by imprisonment in the common jail or house of correction thirty days, and shall pay costs of prosecution ; but if before conviction the respondent shall disclose, under oath, the place or places at which, and the person or persons of whom the liquor so producing intoxication was obtained,” “the said magistrate or court shall thereupon discontinue the said prosecution for drunkenness,” &c. The law of 1860 (ch. 2371, sec. 1) provides that “ no person shall be fined or imprisoned for drunkenness except as a common drunkard.”

The law does not regard with favor repeals by implication, and will not unnecessarily admit them. Daviess v. Fairbain, 3 How. U. S. 636; Plank Road Co. v. Allen, 16 Barb. S. C. 15. Particularly is this true of statutes which are merely affirmative in their character; and if a later statute can, by reasonable construction, be reconciled with a prior one, both will be allowed to stand. Gorham v. Luckett, 6 B. Mon. 152; Williams v. Potter, 2 Barb. S. C. 316; Bowen v. Lease, 5 Hill 221; Beale v. Hale, 4 How. U. S. 37; Wood v. United States, 16 Peters 342. But when a later statute expressly negatives tbe provisions of a former one, or is so inconsistent with it that both can not be operative at the same time; or when the later statute revises the whole subject-matter of a former one, and is evidently designed as a substitute for it, although no express words to that effect are used; or when the later act lays down the only rule to be followed, remedy to be pursued, or penalty to be inflicted; in such cases, the subsequent act must prevail, as being the more recent and authoritative expression of the will of the legislature. Wakefield v. Phelps, 37 N. H. 245; Towle v. Mannett, 3 Greenl. 22; Nichols v. Squire, 5 Pick. 168; Rex v. Cater, 4 Burr. 2026; King v. Davis, 1 Leach 306; Bartlett v. King, 12 Mass. 537; Ely v. Thompson, 3 A. K. Marshall 70; United States v. Irwin, 5 McLean 178. The offense of being found drunk in a public place, described in the Revised Statutes, and the offense of being found in a state of intoxication in a public place, described in the act of 1855, are identical. The terms of the provision in the act of 1855, for discontinuing “ the said prosecution for drunkenness,” show that “found in a state of intoxication” was not intended to designate any other offense than “found drunk.” The provision of the Revised Statutes (ch. 113, sec. 9), so far as it relates to persons found drunk, was repealed by the act of 1855; and section 9, of the act of 1855, so far as it relates to persons found in a state of intoxication in a public building or place, was repealed by the act of 1860. The complaint can not be sustained.

Motion granted.