Lents agt. Craig.

owner of a life estate in the reversion, left the Exchange, believing that the sale would be completed; and learning (as is true) that Storkill was a man of property-said to be worth $25,000.

Storkill swears that he supposed he would have till the next day to pay his ten per cent., and that he is ready, at a new sale, to bid $6,850, as before.

Miller swears that he would have remained at the Exchange and bid on the property, if he had supposed that it would be put up for sale again on that day.

After several persons had left the Exchange, but while there was still a large company there, the premises were again put up for sale, and sold to Lynch for $6,300. This was also, as alleged by Miller and not denied, after the auctioneer had begun to sell another lot.

Under the terms of sale, the auctioneer may put up the property for sale again, if the purchaser does not comply with the terms of sale; but this must be on such notice that no one will be misled by it. Miller was justified in inferring from the conduct of the auctioneer, that the sale was made at $6,850, and that it would be completed at that price; and he left the Exchange with this belief. Some notice after this should have been given by advertisement, or by notice to the parties interested, or who appeared in the cause, before there could be a resale; or the auctioneer should have announced, as soon as the property was struck down to Storkill, or, at all events, before he began to sell another lot, that the resale would take place. immediately, if the purchaser did not comply with the terms of sale. The biddings were not kept open after the sale of a new lot was commenced; then, all the audience might consider the biddings in this case closed. Although there was a large company remaining at the second sale, yet it is evident that it was not a company of bidders; for at the first sale the biddings. were spirited: this is not said of the second. At the first, Lynch bid $6,825; at the second, he bought the property at $6,300.

The purchaser has acted fairly; he should be indemnified for any expense he has incurred, and should be paid the costs of

The People agt. Tiphaine.

this motion, and his disbursements and counsel fee in examining the title; and, say $100 for an indemnity for other losses. Let there be a resale, if the moving party give security that on a resale the sum of $6,850 shall be bid for the property. The costs of the sale should also be paid, unless the persons interested in the reversion waive this.

ERIE OYER AND TERMINER.

THE PEOPLE agt. LEON TIPHAINE.

The Revised Statutes enact that, "Whoever shall sell any strong or spirituous liquors, or any wines, in any quantity less than five gallons at a time, without having a license therefor granted, as herein directed, shall forfeit twenty-five dollars. (1 R. S. 680, § 15.)

"All offences against the provisions of this title shall be deemed misdemeanors, punishable by fine and imprisonment." (Id. 682, § 25.)

These provisions of the Revised Statutes are now in full force and effect. Boards of excise may grant licenses; and all sales of strong or spirituous liquors, or wines, in any quantity less than five gallons at a time, without a license therefor granted, as directed in the Revised Statutes, are unlawful.

Erie, Sept, 1856.

DEMURRER to indictment.

The indictment contains numerous counts, which are generally framed under the Revised Statutes relating to excise, and the regulations of taverns and groceries. All of the counts charge the sale of spirituous liquors, without being licensed thereto according to law, and some of the counts allege the sale in quantities less than five gallons. No objection is made to the form of the counts. The demurrer is general.

A. SAWIN, for people.

F. J. FITHIAN, for defendant.

MARVIN, Justice. "Whoever shall sell any strong or spirituous liquors, or any wines, in any quantity less than five gal

The People agt. Tiphaine.

lons at a time, without having a license therefor granted, as herein directed, shall forfeit twenty-five dollars." (1 Rev. Stat. 680, § 15.)

"All offences against the provisions of this title shall be deemed misdemeanors, punishable by fine and imprisonment." (Id. 682, § 25.)

Are these provisions of the Revised Statutes in force?

There is published, in the volume of Session Laws of this state for 1855, what purports to be "An Act for the Prevention of Intemperance, Pauperism and Crime." (Chap. 231.) In the 24th section it is declared, "All acts and parts of acts, and all charters and parts of charters, inconsistent with this act, are hereby repealed."

The provisions of the Revised Statutes, above quoted, are inconsistent with the so-called act of 1855. The latter act assumed to provide an entirely new system, as a substitute for the system of the Revised Statutes touching the sale of liquors. By the first section the sale of intoxicating liquor is prohibited generally, except as thereinafter provided. This prohibition includes all intoxicating liquors, without regard to quantity. The Revised Statutes had no relation to strong or spirituous liquors in quantities exceeding five gallons.

The second and third sections of the act of 1855 assume to regulate the sale of intoxicating liquors. The fourth section makes a violation of the provisions of the preceding sections a misdemeanor, and inflicts penalties, &c. The recent decisions of the court of appeals, in effect, pronounce these four sections of the act of 1855 unconstitutional.

Judge SELDEN says, "The conclusion to which I am thus brought, is necessarily subversive of the first four sections of the law in their present form."

I shall not remark further upon the decisions of this court, or the opinions delivered; but shall proceed upon the ground that the first four sections are in conflict with the constitution, and that they are, therefore, void. What will be the consequence of this position? These sections contained the substitute for the prohibitions and licensing system of the Revised

The People agt Tiphaine.

Statutes, and they were inconsistent with the provisions of the Revised Statutes. If the provisions of these four sections were valid and obligatory as law, they necessarily abrogated the provisions of the Revised Statutes. It may be said, perhaps, that they were not inconsistent with the general prohibition contained in 15. That section impliedly permitted the sale of spirituous liquors in quantities exceeding five gallons. The prohibition in the act of 1855 extended to all intoxicating liquors without regard to quantity. By § 15 of the Revised Statutes, the sale was unlawful only when made "without having a license therefor, granted as therein directed;" and the act of 1855 assumed to abrogate the license system, as provided in the Revised Statutes. In short, had the first four sections of the statute of 1855 been valid, no action or indictment could have been based upon § 15 of the Revised Statutes. As these four sections, containing the system substituted for, and inconsistent with the Revised Statutes, are, however, null and void, having no force as law, how can it be said, in a judicial and legal sense, that they are inconsistent with the provisions of the Revised Statutes?

"All acts inconsistent with this act are hereby repealed." What is the meaning of "this act?" What construction shall be given to those words? Shall we say that they include all the language and provisions contained in what professes to be" An Act for the Prevention of Intemperance, Pauperism and Crime?" If we adopt this mode of construction, the provisions of the Revised Statutes are abrogated. In my opinion, this is not the proper construction.

If the legislature has made a prohibition in the form of a statute, which it was not authorized by the constitution to enact as a statute, it is not a statute-it is not a law. The legislative power is vested in a senate and assembly; but this power is not unlimited. It is restricted by the fundamental law which the people themselves have enacted-to wit, the constitution. The legislature, in exercising the power conferred, enact laws, and the law is called a statute, or, "an act." When the legis lature transcends its power, their acts or doings are void; and

The People agt. Tiphaine.

whatever language they may have used, and in whatever form they may have put it, they have not succeeded in bringing into existence "an act." Law is a rule of action: municipal law is a rule of civil conduct prescribed by the supreme power in the state. (1 Bl. Com. 44.) The laws consist of the unwritten laws, common laws, and of the written, or statute law.

BLACKSTONE says, the written laws of the kingdom are statutes, acts, or edicts. (1 V. 85.) Act, in legislation, is a statute or law, made by a legislative body, as an act of congress is a law by the congress of the United States; an act of assembly is a law made by a legislative assembly. (Bouv. L. D. “Act.”) Acts are general or special, public or private. All legislative acts are laws; and if not laws, then they are not acts of legislation. In my opinion it is important so to regard the words, "this act," when used in that clause of a statute repealing all statutes or acts inconsistent with it. If this construction is not given, very strange and anomalous results may follow, and it may often be difficult to determine what the state of the law is. Suppose the legislature attempts legislation touching a subject already embraced by the law, and declares, that all statutes or acts inconsistent with it are repealed, and it is held that the entire act is unconstitutional and void, would it be claimed that the prior acts had been affected by the repealing clause? If so, the legislature, without designing it, might leave the whole subject of the prior act, or acts, without any law whatever. Indeed, such would be the effect in reference to the subject we are considering. Now, there is not a man in the whole state. who supposes that the legislature had any intention of repealing the Revised Statutes relating to excise and the regulation of taverns and groceries, and substitute nothing in their stead.

If a statute repeals a prior statute, and then a subsequent statute repeals the repealing statute, the statute first repealed is at once revived. This is the common-law rule—and why? The repealing act being annulled-struck out of existence-it is as though it had never been. Now, in the present case, strike out the unconstitutional provisions in the act of 1855, and there will be nothing in the Revised Statutes touching ex