¶1The opinion of the court was delivered by
¶2The defendant was indicted under section 12 of the Werts law (Gen. Stat.,p. 1813, pl. 142), passed March 20th, 1889.
¶3Section 142 provides that it shall be lawful for druggists to sell liquor by less measure than one quart, without license, if compounded or sold upon the prescription of a reputable physician, and declares that a sale contrary thereto shall constitute the offence of keeping a disorderly house.
¶4The sixty-sixth section of the act of 1898 (Pamph. L.,p. 812) provides that it shall not be lawful for any person without license to sell in less quantity than one quart except such as shall be compounded and intended to be used as medicine.
¶5This is not inconsistent with the provision of the twelfth section of the act of 1889.
¶6It excepts from its operation liquor in less quantity than one quart compounded and intended to be used as medicine, but still leaves in force the provision of the act of 1889 requiring the sale by a druggist to be upon the prescription of a reputable physician.
¶7It was substantially a declaration by the lawmaker that the law of 1898 was not intended to apply to a sale of liquor compounded and intended to be used as medicine, but that as to such a sale the law of 1889 shall remain unchanged. Brooks v. State, 34 Vroom 359.
¶8The indictment was therefore correctly framed under the twelfth section of the Werts law in accordance with the Daly act (Gen. Stat., p. 1101, pl. 273), which requires the indictment to be for selling without license, but provides that the *51punishment shall be that prescribed for keeping a disorderly house.
¶9The offender is subject to punishment under section 192 of the Grimes act and not under section 60.
¶10The indictment charges that the illegal sale was made in the township of Neptune. The evidence is that the sale was in Asbury Park, without any evidence to show that Asbury Park is part of the township of Neptune.
¶11By the public laws of 1897 (Pamph. L., p. 108) it appears that “Asbury Park” was incorporated as a city on the 25th of March, 1897, the act taking effect immediately.
¶12While that act provides no form of government for Asbury Park, it is left to adopt a form of government under the general laws applying to cities, and we think, therefore, the presumption should be that it has adopted a government in accordance with the laws of the state, and that it is a city in fact and in name.
¶13Under the case of Buck v. State, 32 Vroom 525, the failure to prove that the crime was committed' in the township of Neptune as alleged in the indictment is fatal.
¶14The judgment should therefore be set aside.