State v. Popp

Miller, J., delivered the opinion of the Court. The defendant in error was indicted under the Act of 1866, ch. 66, for selling lager-beer on Sunday, and pleaded in bar that the prosecution against him was not commenced within one month after the fact charged in the indictment. The State demurred to this plea, but the Criminal Court overruled the demurrer and discharged the accused, and this judgment the State has brought up for review. The plea is founded on the 11th section of Article 57 of the Code, relating to “Limitation of Actions,” which provides, that “ all actions or prosecutions for blasphemy and Sabbath-breaMng or drunkenness shall he made within one month after the fact.” The question to he decided is no.t whether the terms “Sabbath-breaking” as commonly understood, or as defined by text-writers on criminal law, embrace the selling of liquor on Sunday, hut whether they embrace it as used in this particular section of our Statute law.

It becomes therefore altogether a question of legislative intent and statutory construction. This makes it necessary for us to examine the several sections of the Code on this subject, to trace their origin and ascertain the sense in which these terms were used in antecedent statutes. In Article 30 relating to “Crimes and Punishments,” we find three sections, (178, 179, 180,) placed under the head “ Sabbath-breaking.” The first prohibits work or bodily labor on Sunday, and permitting children or servants to profane the Lord’s day, by gaming, fishing, fowl ⁴³⁴ ing, hunting or unlawful pastime or recreation, and provides that “every person transgressing this section, and being thereof convicted before a single justice shall forfeit five dollars.” The second declares that no householder shall sell any strong liquor on Sunday, (except in cases of absolute ■ necessity,) or suffer any drunkenness, gaming or unlawful sports or recreation in his house, on pain of forfeiting twenty-five dollars to be recovered by action of debt or indictment. These two sections are codifications of the 10th and 11th sections of the old Act of 1123, ch. 16, (to which we shall have occasion again to refer,) the fines being-imposed in money instead of tobacco.

The third enacts that no person shall sell, dispose of, or barter any spirituous or fermented liquors or cordials of any kind on Sunday, and provides that any person violating the provisions of this section shall be liable to indictment in any Court of criminal jurisdiction, and on conviction thereof shall be fined not less than twenty nor more than one hundred dollars for the first offence, and for the second in addition to this fine the annulment of the offender’s license. It is important to ascertain whence this section (180) was derived, and what previous legislation there had been on the subject of selling liquor on Sunday. From a careful examination of the statutes it appears that the 11th section of the Act of 1123, prohibiting householders from selling strong liquor on that day, except in cases of absolute necessity, was the only legislation restraining and punishing such sales, until the passage of the Act of 1834, ch. 244, entitled, “An Act to prohibit the sale of intoxicating liquors upon the Sabbath day.” This Act made it unlawful, (with penalties therein prescribed,) for any person except bona fide tavern or innkeepers, regularly licensed, and whose business shall or may mainly consist in entertaining travellers, and others with board and lodging, to sell, dispose of, or barter any spirituous or fermented liquors or cordials of any kind on ⁴³⁵ Sunday. This law remained in force until repealed by the Act of 1847, ch. 193, also entitled “An Act to prohibit the sale of intoxicating liquors on the Sabbath day.” The first section of this latter Act is section 180 of the Code, to which we have referred, and its second section required the insertion in all tavern licenses of a clause specially excepting the Sabbath day from the operation of the license.

Prior to its codification this law had been construed by this Court to extend only to licensed tavern-keepers, and licensed retailers of liquor. Bode vs. The State, 7 Gill, 326 . So stood the law on this subject of selling liquor on Sunday at the time the Code was adopted, and so we find it codified. Then was passed the Act of 1866, ch. 66, under which this indictment was found.

It is entitled “An Act to repeal sections 179 and 180 of Article 30 of the Code of Public General -Laws relating to Sabbath-breaking, and to re-enact the same with amendments.” In the enacting part of the statute, it is provided “that sections 179 and 180 of Article 30 of the Code of Public General Laws, be and the same are hereby repealed and re-enacted so as to read as follows.” Then follow the two new sections, the provisions of which need not be stated at length. Contrasting the title with the enacting part of this statute, we regard the reference in the former to “ Sabbath-breaking” as nothing more than a superfluous indication of the place in the Code in which the sections to be repealed, amended and re-enacted may be found. Section 178 still remains unrepealed, and placing the two new sections after it we have in substance: 1st. A section punishing work and labor on Sunday by a fine of five dollars to be imposed on conviction before a justice of the peace. 2nd.

A section punishing the sale on Sunday of any goods or merchandise, including liquors and lager-beer, by a fine for the first offence, and by a fine with imprison ⁴³⁶ ment and suppression of license for the second and subsequent offences, upon indictment and conviction in any Court having criminal jurisdiction. 3rd. A section inflicting similar punishments on lite convictions, for keeping open