#### Commonwealth *versus*Mueller.

1. Under the acts of March 31st, 1856, April 20th, 1858, and March 22d, 1867, brewers and distillers are liable to indictment for selling their liquors without license.

2. The local option law of March 27th, 1872 — where it prevailed — forbids any “ court or board of license commissioners” to issue a license for the sale of liquors; the supplement of March 6th, 1873, declared that the prohibition of the act of 1872 should “ apply to all officers authorized by existing laws to issue licenses,” etc. *Held,*that this prohibition extended to licenses issued by county, treasurers to distillers and brewers.

3. The receipt given by*a county treasurer to a distiller is a “license,” within thei meaning of the statute.

4. Although the “ license ” of the county treasurer may authorize the distiller to manufacture, it does not authorize him to sell; the authority to issue a license to sell being withdrawn, the power to sell is suspended.

November 18th, 1873.

Before Read, O. J., Agnew, Sharswood, Williams, and Mercur, JJ.

Error to the Court of Quarter Sessions of *Beaver*County, of October and November Term, 1873, No. 190.

At the September Term of the Court of Quarter Sessions, of Beaver County, John F. Mueller was indicted for selling without license divers quantities of intoxicating liquors, to *128wit: whiskey, ale, beer, porter, etc. The defendant pleaded “ not guilty.”

The local option law of March 27th, 1872 (Pamphlet L , 49), 2 Br. Purd., 956, declares wherever it appears by the returns “that there is a majority against license, it shall not be lawful for any court or board of license commissioners to issue any license for the sale of spirituous, vinous, malt or other intoxicating liqudrs,” etc. by act of March 6th, 1872, sec. 7 (Pamphlet L., 89), Bright. Purd., 1805, pi. 10, — supplement to local option law, — the prohibition by the latter against selling where the vote is against license, is made applicable to all officers authorized to issue licenses.

The case was tried September 4th, 1873 ; the jury found a special verdict as follows :

“ That the defendant is a distiller of whiskey at the borough of Freedom, Beaver County, Pennsylvania; that on the 1st day of May, A.D. 1873, he paid the legal tax assessed upon him as such distiller to the treasurer of said county, and holds a certificate or receipt from said treasurer therefor, that at various times since May 1st, A.I). 1873, the defendant has sold whiskey at his warehouse in the borough of Rochester, in said county, in quantities not less than one gallon, for use as a beverage, and that all his sales are made at said warehouse — no liquor being sold at the distillery in the borough of Freedom aforesaid,.

“ Whether the facts above set out render him guilty of the offence of selling liquor contrary to law, is submitted by the jury to the judgment of the Court; if the Court decide that the aforesaid facts constitute the offence charged, then a verdict of guilty to be entered, otherwise a verdict of not guilty.”

The Court afterwards decided that the facts as found by the special verdict were insufficient to support the indictment, and therefore discharged the defendant without day.

The Commonwealth sued out a writ of error and assigned for error the decision of the Court of Quarter Sessions.

*E. B. Dougherty*(with whom-was *J. H.*MeCreery, district attorney), for the Commonwealth, plaintiff’ in error.

The local option law being in force in Beaver County, can distillers sell liquors in quantities not less than one gallon as a beverage under a license from the county treasurer? The act of March 31st, 1856, sect. 1 (Pamphlet L., 200), 2 Br. Purd , 941, makes it unlawful to keep any place where vinous, spirituous, malt or brewed liquors, or admixtures thereof, are sold or drunk except as provided *in the act. Act of April 10th, 1849 (Pamphlet L., 576), 1 Br. Purd., 175, etc., *129requires that distilleries shall be classified ou paying to the county treasurer a sum rated according to their classification, and they shall be liable to indictment for selling without license. By act of 1856, *supra,*sect. 33, 1 Br. Purd., 176, pl. 4, requires the classification of distilleries, and the payment of double the amount fixed by the act of 1849, and forbids the sale by distillers of less than five gallons. The first section of act of April 20th, 1858 (Pamphlet L., 365), 2 Br. Purd., 941, pl. 6, fixes the amount to be paid by distillers for license the same as the act of 1856, with some specified exceptions. By the 5th section of the act, section 5 (pl. 10), distillers are classed amongst “licensed venders” of liquors, and may sell such liquors as they are licensed to manufacture, and sell not less than one gallon. It is plain that under these acts sales by distillers were unlawful, unless they were licensed. By local option law, *supra,*section 3, pl. 118, no court or board of license shall issue any license to sell spirituous, malt or other intoxicating liquors. The act of March 6th, 187-3, section 7 (Pamphlet L , 39), Br. Purd. Ann. Dig., 1805, pi. 70, enacts that so much of section 3, of act of 1872, as prohibits a court or board of license from issuing license, shall apply to all officers authorized by existing laws to issue licenses. This also clearly prohibits a county treasurer from issuing licénse.

*S. B. Wilson*(with whom was *J. J. Wickham),*for defendant in error.

The “ local option ” law, where it prevails, prohibits “any court or board of license commissioners” from issuing license. But no court or board of license had authority to issue license to distillers; they were left as they were before the act of 1872. The objoet of the act of 1872 was to prevent the issuing of licenses to hotels, etc., and the vendors of liquors with or without other goods; manufacturers were not within its provisions. In some localities the power to issue licenses to hotels, etc., is confided to other bodies than courts and boards of license; it is to those that the 7th section of the act of 1873 applies. The receipt of the county treasurer to a distiller for the tax assessed on him is not “a license,” it is a provision to raise revenue. The act of 1849 originated this species of taxation, and as regards brewers and distillers it is unchanged except as to amount. The money paid to the county treasurer entitles him to carry on the business of a distiller in Beaver County. What is the value of manufacturing if he cannot sell ?

Mr. Justice Merour

delivered the opinion of the court, January 6th, 1874.

*130The act of 31st of March, 1856, section 3, authorized breweries and distilleries to be returned, classified, assessed and licensed. It required that the owner, proprietor, or lessee of each distillery should be assessed, and pay annually the tax assessed, before obtaining a license. It declared, “nor shall such license authorize sales by them of less than five gallons, except malt and brewed liquors.” Section 5, of the act of 20th April, 1858, declares that ‘.‘licensed brewers and distillers may hereafter sell such liquors as they are licensed to manufacture and sell in any quantity not less than one gallon ” The act of 22d March, 1867, provided, “ if any person, after the passage of this act, shall sell spirituous and vinous liquors, domestic wines, malt or brewed liquors, without having obtained a license authorizing him so to do, such person, on conviction in the Court of Quarter Sessions, shall. be fined .... provided that nothing in this act shall be construed to repeal the provisions of the act passed March 31st, 1856,.relating to sales by druggists and apothecaries.” Thus, it will be observed, druggists and apothecaries only are exempted from its penal provisions, leaving brewers and distillers, equally with all others who sell “ without having obtained a license,” subject to the punishment therein provided.

Section 3, of the local option act of the 27th of March, 1872, declares: “ Whenever, by the returns of election in any city or county aforesaid, *it shall*appear that there is a majority against license, it shall not be lawful for any court, or board of license commissioners, to issue any license for the sale of spirituous, vinous, malt, or other intoxicating liquors, or any admixture thereof in said city or county..... Provided that nothing contained in the provisions of this act shall prevent the issuing of licenses to druggists for the sale of liquors for medicinal and manufacturing purposes.” Thus equally debarring all persons except druggists from obtaining licenses to sell intoxicating liquors.

The 7th section of the act of 6th March, 1873, being a supplement to the act of 27th March, 1872, provides that “it is further declared to be the ttue intent and meaning of section 3 of the act to which this is a supplement, that so much of said section as prohibits the issuing of-licenses by any court or board of license commissioners, in any district where there is a.majority against license, shall apply to all officers authorized by existing laws to issue licenses for the sale of spirituous, vinous, malt, or other intoxicating liquors or any admixture thereof.”

This language is certainly broad enough to extend to the treasurer of a county. He is as clearly prohibited from *131issuing a license to sell intoxicating liquors as a board of license commissioners or a court. Indeed the object of the section last cited appears to have been to prohibit treasurers and other officers not included in the original act from issuing licenses. A majority of the electors of Beaver County voted against license. It is contended that the receipt given by a county treasurer is not a license in the sense in which that word is used in the statute. Why not ? In each of the acts cited, which provide for giving a distiller authority to sell, it is called a “license,” That “license” is the sole evidence of authority to sell. It must be obtained before any sale is made. It is the name given to every grant authorizing the sale of spirituous liquors, whether it be issued by an officer or by a court. We are unable to see why the prohibition does not apply as clear]y and as distinctly to a county treasurer as to a court. Again, it is urged that the license issued to a distiller authorizes him to carry on his business as distiller. That having authority to distil, the power of sale is a necessary incident. This mode of reasoning ignores the important fact that it is by authority of the license only that a distiller is authorized to sell. Whenever that authority is withheld the power to sell is suspended. If it be urged that the legislation is unreasonable or unwise which authorizes the distillation of spirituous liquors,'but prevents the sale thereof in the county where they are manufactured, we must refer the objector to the legislature for an answer. Our duty is confined to declaring the law as we find it.

A careful examination of the several statutes relating to the sale of spirituous liquors has failed to satisfy us that a distiller in a county where the issuing of licenses is prohibited by law, has an authority to sell therein the liquor manufactured by himseljf. We think, therefore, that the learned judge erred in holding that the facts set forth in the special verdict were insufficient to support the indictment, and the judgment must be reversed.

Judgment reversed, and it is ordered that the record be remanded to the court below, and that said court proceed to pronounce judgment upon the verdict.