¶1delivered the opinion of the court.
¶2This indictment charges that the defendant “ did then and there unlawfully sell to one Thomas I. Fisher intoxicating liquor, to-wit, one gallon and one quart, for the price of ten cents, without having any kind of license for that purpose.” The indictment was quashed upon motion in the circuit court, and we think correctly. This indictment was found at the October term, 1856, of the circuit court of Hickory county, and consequently falls under the provisions of the revised statutes of 1855.
¶3There is no averment that defendant was a merchant within the meaning of the first section of the act “ to license and tax merchants” (2 R. C. 1855, p. 1072) ; nor is any breach of the first section of the act to regulate dram-shops (1 R. C. 1855, p. 683) alleged. We have not been refex-red to any provision of the code of 1855 prohibiting the sale of spirituous liquors in quantities exceeding a gallon without license, unless where the vendor is a merchant. The second section of the dram-shop law might be regarded as an implied prohibition were it not for the first section. The latter is a direct and positive prohibition, and yet would be entirely supererogatory if the second section should be held to bear the construction suggested.
¶4The other judges concurring, judgment affirmed.