Appeal from the Circuit Court of Panola County.

Hon. A. T. Eoane, Judge.

At the May term, 1887, of the Circuit Court of Panola County, Gr. W. and H. E. Winterton were indicted, under the provisions of the Code of 1880, for retailing intoxicating liquors without license.

To this indictment the defendants pleaded in abatement, at the November term, 1887, that in July, 1887, an election' was held in Panola County in pursuance of an act of the Legislature known as “The Local Option” Act, (Acts of 1886, p. 35,) and that such election resulted in a vote of the county “against the sale ” of liquors ; and that because of such result the indictment under the old law became of no effect and should be quashed.

To this plea the State demurred. The court sustained the demurrer. The defendants were convicted and they appealed.

The election in Panola County under the Local Option Act (Acts of 1886, page 35 et seq.), having resulted against the sale of liquors in the county', clearly put the Local Option Act in full force in the county, and it suspended all other laws on the subject.

Wheeler v. Slate, 64 Miss., 462.

This being so, all former laws on that subject in so far as they relate to indictment, trial or punishment, have no force or effect.

It seems that this Court has denied that all the former laws on this subject were repealed as a consequence of the election under the Local Option Act, and held that they are merely suspended. Hearn, et al. v. Brogan, 64 Miss., 334.

This being so the plea in abatement should have been upheld ; because so long as a law is suspended, no proceeding can be had, nor action sustained by virtue thereof. No judgment can be pronounced or punishment inflicted.

State v. Banks, 12 Rich. (S. C.), 609.

In the above cited case, the Court says, “ When an act imposing a penalty is suspended, it cannot be enforced during the period of suspension for penalties previously incurred.

This is clearly correct. The suspension of a law is a temporary stop of all proceeding and enforcement of the law. If the public safety should require it, or for any legal purpose the writ of habeas corpus should be suspended, could any person avail himself of its provisions during the period of suspension ? Why not ? Because the writ is suspended, and therefore inoperative.

The suspension of a law operates so as to prevent its operation for and during the period of suspension.

Bouv. Law Diet. “ Suspension,” Pen., 365.

If the State has the right to enforce penalties sanctioned by a suspended statute, then the statute is not suspended, but operative.

Does an election under the Local Option Act of 1886 put an end to prosecutions under the Code for unlawful sales of liquor? That effect is denied. Why should that be the result ? It will not do to say that merely because the offence can no longer be committed under a given law that prosecutions must cease for its violation.

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