¶1It is unnecessary to pass upon the point raised as to the want of a venire for the grand jury, since we are of opinion, on the merits, that the judgment should be reversed. Power has been conferred by law, over this whole subject, to incorporated towns, which they may regulate by ordinance. That power has been exercised by the town of Salem, and restraining and regulating ordinances passed by its authorities.
¶2To that authority was the defendant amenable, and to that alone. He could not be punished under those ordinances, and by the State laws also, which would be the case, should this prosecution be sustained.
¶3Incorporated towns have the power to declare that the sale of spirituous liquors within their limits shall be deemed a nuisance, and punished as such. They have the exclusive privilege of granting licenses to sell such liquors, (Scates’ Comp. 206,) and to prescribe the terms on which they may be sold within the limits of the incorporation, and no person need have any other license than the town ordinances. If he brings himself within their provisions, he cannot be, and ought not to be, punished. This the defendant succeeded in doing.
¶4Another objection made is, that pure alcohol is not, in legal parlance, a spirituous liquor. It is not, in common parlance, so considered, although it is the basis of all spirituous liquors. We are not prepared to say, however, that selling pure alcohol is not selling spirituous liquor.
¶5For the reason that this whole subject has been committed by law, to incorporated towns, and the town of Salem having acted upon it, by passing the necessary ordinances, an indictment for the offense alleged to have been committed in that town, cannot be maintained.
¶6The judgment therefore must be reversed. One word as to the manner in which the cleric has made up this record. He has incorporated into it the affidavits of the witnesses claiming their fees for attendance. This is unwarranted, and cannot be tolerated, and costs cannot be taxed therefor.
¶7The judgment is reversed. Judgment reversed.