State v. Carter , 28 S.C. 1 ( 1888 )

The opinion of the court was delivered by

Mr. Justice McGowan.

At the June term of the court (1887) for Berkeley County, the defendant was indicted for selling spirituous liquors without a license in February, 1886. He was convicted, and before sentence moved in arrest of judgment. The presiding judge overruled the motion, and the defendant appeals to this court upon the following grounds: “I. Because his honor erred in holding that so much of section 1731 of the General Statutes, as prescribes that it shall be lawful, &c., as far as the provisions of the same refer to Berkeley County, had not been repealed by the act of December 24, 1886, entitled ‘An act to provide for the issuing of license to sell spirituous and intoxicating liquors, ale, malt, and wine in Berkeley and Beaufort Counties,’ &c. II. Because his honor erred in holding that section 1734 of the General Statutes, so far as the same refers to Berkeley County, had not been repealed by the said act of December 24, 1886.”

In 1880, the legislature of this State passed a law (now section 1731 of the General Statutes), Avhich provides that “no license for the sale of intoxicating liquors shall be granted in South 'Carolina outside of the incorporated cities, towns, and villages of the State: and it shall be unlawful for any person or ptersons to sell such liquors without a license so to do.” And a subsequent section (1734) imposes penalties for violations of the law. In December, 1886, a law was passed which provides “that from and after the approval of this act, it may be lawful for the county commissioners of Berkeley and Beaufort Counties to issue licenses for the sale of spirituous and intoxicating liquors, &c., in their respective counties, to such persons as may conform to the provisions of this act. * * * That all acts and parts of acts inconsistent with this act be and the same are hereby repealed, so far as Berkeley and Beaufort Counties are concerned, except as to tbe incorporated towns and villages, in which the provisions of law as now existing shall remain in force.” 19 Stat., 658. The offence charged in the indictment was committed in Berkeley County in February, 1886, before the passage of the act of December of that year, which authorized the commissioners of that county to grant licenses to retail; but as the defendant was tried and convicted in 1887, after the passage of the latter act, his counsel makes the point, that in effect the latter act repealed the former, and that there is now no law of force under which ho may be punished.

It is quite clear that the act of 1886 was not intended to be retrospective and to apply to offences committed before its passage ; for, by the terms, used, it was to take effect only “from and after the approval of the act.” And it is also just as clear that it did not repeal so much of section 1731 of the General Statutes as declares it “unlawful for any person to sell spirituous liquors without a license so to do;” for the repealing clause Avas expressly limited to all acts and parts of acts which were “inconsistent” with the act. The act made no provision whatever as to the legality or illegality of retailing Avithout a license, but only provided that in Berkeley and Beaufort the county commissioners might “issue licenses for the sale of spirituous liquors.” It seems to us that there Avas nothing in this “inconsistent” with the general law making it illegal to retail spirituous liquors without a license. On the contrary, it would seem that the very provision authorizing licenses to be issued, could only be necessary in the view and upon the assumption that retailing without such license continued to be unlawful. We do not think that general law was repealed by the act of 1886, in the counties of Berkeley and Beaufort.

It is said that in a criminal proceeding the law is so tender as to the rights of the accused, that it will not permit one to be punished under a law Avhich has been superseded or repealed before conviction. That is undoubtedly the humane provision of the laAv; but we fail to see how it can be made applicable here. The defendant, in February, 1886, committed the offence of retailing Avithout a license in Berkeley County, and it is not denied that at that time he was amenable to indictment and punishment. In December, 1886, a law was passed which authorized the commissioners of that county to grant licenses to retail, which, as we have endeavored to show, did not repeal the law which made and still makes it illegal to retail spirituous liquors without a license. Although the county commissioners of Berkeley now have the right to grant such licenses, they are not obliged to do so ; and we suppose that, in case of their refusal, it would still be an offence in Berkeley to retail without a license. We concur with the Circuit Judge when he said: “I have no doubt that when there has been a clear and full repeal of a statute creating an offence, no punishment can be inflicted after the repeal. I do not think this is a case of that kind, but it is like the cases of State v. Cole, 2 McCord, 1, and State v. Taylor, Ibid., 484, in which the new acts carried along with them, and as a part of the statute law, the old provisions.”

The judgment of this court is, that the judgment of the Circuit Court be affirmed.