Beckham v. Howard

Bleckley, Chief Justice. The argument of this case was able and admirable. It furnished a conspicuous instance of adherence to the record; which, on one side was spontaneous, and on the other reluctant at first, but at last voluntary and altogether satisfactory. After studying the three statutes discussed, to wit, the acts of 1873, 1883 and 1887, (acts 1873, p. 285; acts 1883, p. 386; acts 1887, p. 857,) we find that a correct construction of the last is decisive against the power of the commissioners of Zebulon or any other person or persons to grant license to sell spirituous or intoxicating liquors within an incorporated town in Pike county. The act of 1887 is no less a prohibitory law, as to incorporated towns, than was the act of 1883. By a proviso in the seventh section, “the provisions herein contained as to the manner of obtaining license shall not be. construed to apply to any incorporated towns in said county,” and the body of the section makes it unlawful, after the previous prohibition law isuperseded, “for any person to engage in the sale of spirituous or intoxicating liquors, etc., without first obtaining from the ordinary of said county a license.” The 8th, 9th, 10th and 11th sections develop a system, somewhat confused and contradictory, for obtaining license by filing an application with the ordinary; and then the twelfth section declares that “any person engaged in said sale in said county without first having obtained such license in the manner, hereinbefore set forth, or otherwise violating this act, shall be deemed guilty of a misdemeanor,” etc. íhe result is, that no [92] person can procure a license to sell in an incorporated, town, and that any person engaging in the sale anywhere in the county without a license, commits a misdemeanor. It follows necessarily that it is a misdemeanor to engage in the sale within any incorporated town pf the county, as no license can be had for so doing, and the business cannot be carried on" without a license. ’ ■ The act of 1873 cannot be administered in Zebulon, because that act is held in cheek as effectually by the act of 1887 as it was by the act of 1883. Whilst it may be practicable, notwithstanding the confused phraseology of the act of 1.887, to obtain a license to sell in. Pike county elsewhere than in incorporated towns, the incorporated towns are excluded from the license system, and are absolutely and unconditionally “dry!” Such is' our conclusion from a careful and thorough study of the subject. Nevertheless we will not reverse the judgment of the judge below denying the writ of prohibition prayed for. The exposition which we have made of the act of 1887 in this brief opinion, renders a reversal unnecessary. Judgment affirmed.