The opinion
The opinion of the Court, Shepley, C. J., Wells, Rice and Appleton, J. J., was drawn up by
Appleton, J.
On the trial of an indictment, the inhabitants of the town, where the offence is alleged to have been committed, are competent witnesses, notwithstanding the penalty in case of recovery would enure to their use. State v. Stuart, 23 Maine, 111.
In an indictment for presuming to be a common seller without a license, the defendant, if he would avail himself of one, must prove it. Though the indictment must negative the fact of being licensed, yet proof thereof is not required of the government to authorize a conviction. State v. Crowell, 25 Maine, 171. State v. Churchill, 25 Maine, 306. The reasoning of the Court in those cases applies with equal force to the present, and must be considered decisive of this point.
The defendant was licensed as an innholder and common victualer, and it is insisted that as such he might sell liquors to his guests. In support of this proposition, the Court are referred to State v. Burr, 1 Fairf. 438. It is true that the provision upon which that decision was based has been reenacted by R. S. chap. 36, and if there had been no subsequent legislation this decision would apply. But the Act of 1846, “ to restrict the sale of intoxicating drinks,” and the Act of 1851, “for the suppression of drinking houses and tippling shops,” prohibit by the most general language the sale “ directly or indirectly of any spirituous or intoxicating liquors, or any mixed liquors a part of which is spirituous or intoxicating,” with the single exception of sale, for medicinal or mechanical purposes. All statutes may be repealed or modified by subsequent legislation and the repeal or modification may be by express language a necessary and unavoidable implication. The statute of 1821 does not contemplate the granting *296 a license to any one. The language of the recent statutes on this subject is too general, the object of the legislature too apparent, to leave it a matter of doubt, that it was their intention to embrace within its provisions every citizen within the limits of its jurisdiction and to prohibit the sale of all intoxicating liquors, whether imported or not, except for certain specified purposes. All Acts or parts of Acts inconsistent with this Act are repealed. The granting a license to a common victualer to sell to those who may board with him, or to others, would be not merely inconsistent with, but would be a palpable violation of the first section. No sale by any person whatsoever can be justified under the statute, except by an agent duly appointed and within the scope of his appointment. Exceptions overruled.
Judgment on the verdict.