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State v. Benjamin

State of Oregon v. Henry Benjamin

State v. Benjamin, 2 Or. 125 (1865)
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Court
Oregon Supreme Court · State Highest Courts
Decided
September 15, 1865
Judges
Boise
Citations
2 Or. 125
Headnotes
1. Section 658 of the criminal Code does not repeal section 9 of the license law. 3. What constitutes a repeal by implication.
Summary
Appeal from Wasco County. Henry Benjamin was indicted for violating the ninth section of the statute, page 773, fifth section of the act of January 18th, 1854, regulating licenses to sell spirituous liquors, which section provides: “No person shall keep open any house, or room, in which intoxicating liquors are kept for retail, on the first day of the week commonly called Sunday.” The trial resulted in the conviction of defendant.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Boise

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Boise, J.

At the trial the counsel for the prisoner asked the court to instruct the jury that section five of the act of 1854, was repealed so far as it relates to keeping open a house in which intoxicating liquors are kept for retail, which instruction the court refused. Counsel for the prisoner claims that, section 653, page 564 of the Code, repeals, by implication, section five aforesaid.

Section 653 provides: “ If any person shall keep open any store, shop, grocery, ball-alley, billiard room, tippling house, or any place of amusement, or shall do any regular business or labor, &c., on Sunday, he shall, on conviction, be punished,” &c. Are these provisions so inconsistent that they cannot both stand % Section 653 contains no words descriptive of this offense, and cannot, therefore, by implication, repeal section five. To repeal an act by implication, there must be a subsequent statute on the same subject, and providing for the same subject matter; so that at the time the legislature enacted the subsequent statute, they must have intended it as a substitute for the former. Section 653 does not provide against keeping open houses in which intoxicating liquors are kept for retail; there is then no inconsistency or repeal by implication.

Judgment is affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1874–1875: 21904–1905: 11912–1913: 11916–1917: 11930–1931: 118742026peak 1874 · 2

Relies on it most ⓘ

  1. Pacific Elevator Co. v. Portland133 P. 72 (Or. 1913)
  2. Sandys v. Williams80 P. 642 (Or. 1905)
  3. Messick v. Duby168 P. 628 (Or. 1917)
  4. Fleischner v. Chadwick5 Or. 152 (1874)
  5. Grant County v. Sels5 Or. 243 (1874)
  6. State ex rel. Harth v. Phipps299 P. 1009 (Or. 1931)

Most recent

  1. State ex rel. Harth v. Phipps299 P. 1009 (Or. 1931)
  2. Messick v. Duby168 P. 628 (Or. 1917)
  3. Pacific Elevator Co. v. Portland133 P. 72 (Or. 1913)
  4. Sandys v. Williams80 P. 642 (Or. 1905)
  5. Grant County v. Sels5 Or. 243 (1874)
  6. Fleischner v. Chadwick5 Or. 152 (1874)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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