Hearn v. Brogan

Campbell, J., delivered the opinion of the court. The result attained by dismissing the appeal was correct, whether the appeal should have been dismissed or not, for on the merits, as presented by the record, the law is with the appellee. Therefore we decline to decide as to the validity of the appeal, merging it in the paramount question, whether it could have been available. That it was not avered that John T. Brogan is “ a male person,” and that he and the requisite number of those required joined in one petition for license, instead of his having one and his supporters another, and that the petition is for license to sell, without specifying in what quantities, constitute no valid objection. One licensed to retail may sell in any quantity. Code, § 1097. The only license the municipal authorities could grant was to retail, and as that confers the right to sell, there is no reason why applying in terms for a. license to sell generally should be bad. Wé assume that an election has been held in Clay County under the act of 1886, and that it resulted in favor of the gale of liquors, because the record shows an attempt to comply with that act, which would be inappropriate if such election had not been held. [339] This being so, the code and amendments, as further amended by the act of 1886, constitute the law applicable.' It is not true that an election under the late law abrogates the former law. If the result is against the sale, the former law is thereby suspended for the time, and the new law governs with its provisions and penalties for its violation, but if the result is for the sale, the former law remains in full force, modified by the new as to the terms on which license may be obtained. Were this not true, we would have this result: In an election favorable to the sale there would be no penalty for selling vinous and spirituous liquors in any quantity, for the only penalties provided by the new law are for violating its provisions ; if the result of the election is against the sale, and in case of contrary result, the code alone or former amendatory laws must be looked to for penal sanctions against the unlicensed traffic in liquor. There is no express repeal of former laws by the late act, and as repeals by implication are never favored, the new law must be held to displace or suspend the former only to the extent of inconsistency between them. There is nothing in the latter enactment inconsistent with continued operation of former statutes, except as stated above in this opinion. The express declaration in the last act in § 6 that “ in case license be granted said applicant, he shall, before commencing the sale of such liquors, pay the tax and give the bond, as now provided in chapter 39, Revised Code 1880, and in § 7: “ That the acts in relation to the sale * * * as found in Code of 1880 and acts amendatory thereof, shall govern and control the granting and issuance of license to sell such liquors,” were unnecessary and serve no purpose, except to suggest that perhaps the legislature, in expressing these things of former laws as to continue, manifested a purpose to exclude all else on the familiar rule expressed by the maxim qxpressio unius, exolusio alterius est; but while these expressions give countenance to the view contended for by some, they are not sufficient to overcome the fact that there is no express repeal of former laws, and the rule that repeals by indirection' and implication are not. favored. Affirmed.