People v. Koenig

On the 5th day of June, 1896, the appellant was arrested within the city of New York, and brought before a city magistrate, charged with violating section 290 of the Penal Code, in that he, the defendant, sold beer to a minor under the age of sixteen years. When the defendant was arraigned for trial in the court of special sessions, he moved for a dismissal of the complaint on the ground that under chapter 112 of the Laws of 1896, known as the “Liquor Tax Law,” the-court had no jurisdiction to try the case for the following reason: that the only wry in which the defendant could be prosecuted was by way of indictment and trial in a court of record having jurisdiction for the trial of crime of the grade of a felony. This motion was denied. At the close of the people’s case the defendant renewed his motion, which was again denied; to both of which rulings the defendant duly excepted.

The provision of the Penal Code which the appellant was alleged to have violated was subdivision 3 of section 290, which provides that a person who sells or gives away, or causes or permits or procures to be sold or given away, to any child actually or apparently under the age of sixteen years, any beer, ale, wine, or any strong or spirituous liquors, is guilty of a misdemeanor. This provision was enacted in 1889 (chapter 140), and was concededly in force up to the time of the going into effect of the liquor tax law above mentioned; and there is no claim made but that, until the passage of this latter law, offenses-against the provision quoted were cognizable in the court of special sessions of the city and county of New York, unless the defendant demanded a trial by jury, or thereafter the case was-removed into the court of general sessions (Code Or. Proc., § 64). On the 13th of March, 1896, chapter 112 of the Laws of 189'6, known as the “Liquor Tax Law” was enacted, and by section 30 thereof it was provided, among other things, that no corporation, association, co-partnership, or person, whether taxed under this act or mot, shall sell or give away any liquors to any minor under the age of eighteen years. Section 34 declares, among other things, that any person who shall violate the provisions of this act by trafficking in liquor contrary to its provisions, shall be guilty of a misdemeanor, and upon conviction

Annexed to the act is a schedule of general laws, and the act provides that of the laws enumerated in this schedule that portion specified in the last column is repealed. But section 290 of the Penal Code i-s not there mentioned. This clearly indicates that it was not the intention of the legislature to repeal any general laws except those enumerated in thi-s schedule. This view is further strengthened by section 728 of the Penal Code, which provides that "no provision of this Code, or any part thereof, shall be deemed repealed, altered or amended by the passage of any subsequent act inconsistent therewith, unless such statute shall expressly refer thereto, and directly repeal, alter or amend this Code accordingly.” The rule is well settled that repeals by implication are no-t favored, and that a statute is not to be deemed repealed by implication by a subsequent statute upon the same subject, unless the two are manifestly inconsistent with and repugnant to each other, or unless a clear intention is disclosed on the face of the later statute to repeal the. former one. Heckmann v. Pinkney, 81 N. Y.215; People v. Jaehne, 103 id. 182; 8 N. E. 374 ; McKenna v. Edmundstone, 91 N. Y. 231 . Applying these rules to the case at bar, it is evident that there was no repeal by implication of the provisions of the Penal Code. It is true that the appellant might .have been proceeded against under the provisions of the

.We are of opinion that the conviction should be affirmed.

All concur.

; As to repeals by implication see note to People v. Cleary, 11 N. Y. Cr.