#### Commonwealth, *v.*Kramer.

On a writ of habeas corpus, it appeared that the relator, the holder of a license to sell intoxicating liquors, granted April *4,*1887, was indicted Sept. 7, 1887, for unlawfully selling intoxicating liquors to minors and to persons of known intemperate habits, since May 13, 1887, that he was convicted and sentenced to fine and imprisonment, under § 17 of the Act of May 13, 1887. The defendant claimed that the court of quarter sessions had no jurisdiction to impose the sentence since his license was granted under prior laws. Held, on certiorari to the supreme court, that the writ should be quashed.

Oct. 15, 1888.

Error, No. 26, Oct. T., 1888, to C. P. Butler Co., to review an order discharging a writ of habeas corpus applied for by James Sellers and directed to Peter Kramer, Sheriff, at Dec. T., 1887, No. 13. Williams, J., absent.

The facts appear from the opinion of the court, discharging the writ, as follows, by PIazen, P. J.:

“James Sellers, the relator, was indicted in the quarter sessions of this county: 1st, at No, 41, Sept. T., 1887. Indictment, unlawfully furnishing intoxicating liquors, by sale, gift or otherwise, to minors. Sept. 7, 1887, a true bill. Sept. 15, defendant pleads ‘not guilty.’ Sept. 15, jury sworn. Same day, verdict, ‘Guilty in manner and form as he stands indicted.’ Oct. 1, 1887, defendant sentenced to pay a fine of $50 to the commonwealth, costs of prosecution, 20 days in the county jail, and committed.

*199“ 2d. At No. 42, Sept. S., 1887, Q. S. Indictment, unlawfully furnishing intoxicating liquors, by sale, gift or otherwise, to men of known intemperate habits. Sept. 7, 1887, a true bill. Sept. 15, defendant pleads ‘ not guilty.’ Sept. 15, jury sworn. Sept. 16, verdict, ‘ Defendant guilty in manner and form as he stands indicted.’ Oct. 1, defendant sentenced'to pay a fine of *$200*to the commonwealth, costs of prosecution, 20 days imprisonment in the county jail, and committed.

“ Petition for a writ presented on Saturday, Oct. 22, late in the evening. Writ granted Oct. 24, relator complaining that he was unlawfully restrained of his liberty. Defendant in both cases, being the same person, was indicted, tried, convicted and sentenced under § 17 of the Act of May 13, 1887, known as the Brooks High License Bill, for offences committed, as shown by the bill of indictment and the proofs adduced on the trial of each case, subsequent to the passage of said Act.

“ The proofs adduced on the part of the commonwealth were confined strictly to offences committed after the approval of said Act, to wit, after May 13, 1887.

“ That the offenses respectively named in said bills of indictments were offences under said Act, we have no doubt, and that the jury did as they were in duty bound, acting under the sanction of their oaths, and that the verdict could not have been otherwise in either case.

“ It is argued, by the counsel for the relator, that, under the decision rendered by the supreme court, Oct.-Nov. T., 1887, in the case of Sanders *v.*Com., and Thomas *v.*Com. 22 W. N. C. 226, that the principle laid down in said cases would entitle the relator to his liberty. In said cases, for both were heard and the opinion written together, the supreme court hold that the penalty for selling liquor without a license under the provisions of the Act of April 12, 1875, § 4, may be imposed in a case where the offence was committed and the indictment found prior to the adoption of the Act of May 13, 1887, though the trial did not take place until after the passage of said last named Act, but certainly do not decide that a party charged with an offence committed after the passage of the Act of 1887, —as charged in these indictments, — must necessarily be tried, convicted or sentenced under an Act existing prior to said date, in order to be valid, though such offender may, at the time of committing the offence, hold a license granted under the Act of April 12, 1875. Nor do we believe that the principles decided in said cases in any way have a bearing upon the cases in point, and we therefore hold that this writ should be discharged, and the relator, defendant in the indictments, remanded to the custody of the sheriff to carry out said sentences.

“ Now, Nov. 14, 1887, upon due consideration, writ discharged at the costs of the relator, and James Sellers, the relator, remanded to the custody of the sheriff to carry out the sentences in said cases.”

*200The indictments at Nos. 41 and 42, Oct. S., 1887, did not charge the defendant as a licensed vendor, but, on the hearing of the habeas corpus, it was established that a license was granted to the defendant April 4, 1887. It does not appear by the record, as printed, what kind of license was granted. This writ-of certiorari was taken March 6, 1888,-to test the validity of the sentence as to costs.

*The assignments of error*specified the action of the court, 1, in discharging the writ of habeas corpus and remanding the relator, James Sellers, tq the custody of the sheriff to carry out the sentences ; 2, in making the order of Nov. 14, 1887, quoting it; 3, in not discharging the relator from the custody of sheriff

The court did not hear argument, but quashed the writ. The argument on the question attempted to be raised was as follows, in the paper-books:

*Neivton Black*and *L. McQidslion,*for plaintiff in error.

Implied repeals occur where there is such positive repugnancy that the new and old statute cannot stand together or be consistently reconciled. Sifred *v.*Com., 104 Pa. 182.

Second 1 of the Act of 1887, provides that it shall be unlawful to keep-a place-where intoxicating liquors are sold, “except a license therefor shall have been previously obtained as *hereinafter provided!’*Surely this is not repugnant to the continuance of the penalties connected with a license granted under prior laws. Section 3 provides, that *such licenses*may be granted only by the court of quarter sessions, and that said court shall *fix by rule*or standing order, the time in which applications for *said licenses*shall be heard, etc., and provides, “ That licenses under previous laws shall not be granted later than June 30th of this year.” The purpose of this proviso was to adjust the existing system of licensing to the provisions of the new Act. Would a licensed offender, under a license granted June 30, 1887, under “previous laws,” be amenable to the penalties of the Act of 1887? We think not. There is certainly no rule of construction tending to such a doctrine. Its effect makes the legislative intent more clear that the unlicensed offender, for an offence committed any time prior to May 13th, 1887, must be punished under prior laws, though tried after that date, and the licensed vendor under the law's existing at the time such license was granted. There is nothing in the Act of 1887 repealing prior penalties and laws as to offenses committed by unlicensed offenders prior to May 13th, 1887, nor licensed offenders during and up until the expiration of such license. Section 13 provides that every person *receiving such licenses*to sell spiritous, vinous, malt or brewed liquors, shall frame his license, etc. Section 15 provides that any person who shall *hereafter*be convicted of selling vinous and spirituous liquors, etc., and any person having license who shall hereafter be convicted of violating any of the provisions of the license laws shall be subject to a fine, etc. This language, by its express terms, covers every *201case of subsequent conviction for unlawful selling without license after May 13th, 1887, but is inoperative as to licenses under “previous laws,” being prospective only. Previous penalties are kept in force as to prior licenses. Sanders *v.*Com., 117 Pa. 293. The Legislature did not intend to provide new penalties for licenses under former laws. If so, this section may be ex post facto and unconstitutional. Section 19, providing for the repeal of local liquor laws, fixing a license fee, only strengthens the construction that the Legislature did not intend the Act, its penalties or any of its provisions, to operate on a person holding a license under the former license laws. The title of the Act, “To restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, etc.,” as well as its provisions, clearly indicate that it is'entirely prospective in its terms, and does not affect licensees under former laws, but provides for future cases, committed since the approval of the Act, by persons having no licenses. Where a new Act is prospective only, the old Act is not repealed as to past offences, so long as the license granted under it continues. State of Kansas *v.*Hicks, 3 S. W. Rep. 524. Statutes should be interpreted so as to operate prospectively only. Taylor *v.*Mitchell, 57 Pa. 209.

“ It would be a curious legal anomaly to hold that a liquor vender might have his license under a former Act and yet be exempt from the conditions to which, by the same Act, it was made subject.” Sanders *v.*Com., supra.

The court below exempts the relator from the penalties of the liquor laws existing when his license was granted, but sentences him under a law that was not in existence when-such license was granted. The relator may never have intended to apply for a license under the new Act, because he may have thought its penalties and provisions too difficult to comply with. His old license was a contract with the court, he agreed when it was granted to comply with all the provisions of the laws under which it was granted or pay the penalties prescribed by such law. Such, also, was the contract of his bondsmen.

In Saunders *v.*Com., 117 Pa. 293, this court say, in speaking .of the proviso in § 3 of the Act of 1887: “This certainly keeps in full force all the previous provisions and penalties connected with the granting of such licenses, not only up to the time aforesaid, but until the expiration of such licenses.”

Uwchlan Road, 30 Pa. 156; and Hickory Tree Road, 43 Pa. 139, favor our position.

*Charles A.*McPherrin, District Attorney, and *R. P. Scott,*for defendant in error.

Saunders *v.*Com., supra, relied upon by the plaintiff in error, is not authority in this case. The supreme court there held the conviction and sentence under the Act of 1875 was right, because the offence charged in the indictment was committed and the bill found, while the Act of 1875 was in full force and ef*202feet, and before the Act of May 12, 1887, was passed or became effective. Here Sellers was indicted for furnishing liquors to minors and persons of known intemperate habits, — contrary to law, but not as a licensed vendor. The indictments were found true bills Sept. 7, 1887. The proofs showed that the offence charged in each of said indictments was committed in the months of July, August and September, 1887, after the Act of May 13, 1887, was passed and became effective.

Oct. 15, 1888.

No law of this commonwealth ever protected, or ever will protect, the furnishing or sale or intoxicating liquors to minors or persons of known intemperate habits, under license or otherwise.

The only question, here, is for the plaintiff in error to explain how, upon a writ of error taken to the order of the court of common pleas discharging the writ of habeas corpus, which was a matter resting solely in the sound discretion of the court, he can bring up for inspection, review and reversal the records and judgments of the cases adjudicated at Nos. 41 and 42 Sept. T. 1887, Quarter Sessions of Butler county, a court that is of a separate and distinct jurisdiction, and from which the common pleas is not an appellate court.

Per Curiam,

Writ quashed.

See note to Sanders *v.*Com., in 9 Cent. 800, and note to Com. *v.*Toogood, 4 Pa. C. C. R. 284, for discussion of the question attempted to be raised in this case.