#### STATE v. JOHN E. HAMPTON.

Indictment — Selling Liquor— Construction of Statute — Jurisdiction.

1. The Act of 1S74 — ”/5, oh. 120, making it indictable to sell liquor, &c., “within three miles of the located line of the Asheville & Spartanburg R. R., during the construction of the said road,” applies only to that t part of the road actually undergoing construction; Therefore, where a defendant was indicted un ler this act, and the jury found specially that ho sold liquor within two miles of the located line, but that the road had never been in process of eonsti notion within seven miles of the place of sale ; Held, that he was not guilty.

2. A misdemeanor punishable “by fine of notless than ten nor more than fifty dollars, or by imprisonment of not less than ten days,” is not within the jurisdiction of a Justice of the Peace.

INDICTMENT for a Misdemeanor, triéd at Spring Term, 1877, of Buncombe Superior Court, before Funches, J.

The defendant was indicted for selling liquor in violation of Laws 1874-’75, eh. 126 : Sec. 1. “That it shall be unlawful for any person or persons to sell or in any manner give away any intoxicating liquors, or either directly or indirectly receive any compensation for the same, within three miles of the located line of the Asheville and Spartanburg Railroad during the construction of the said road.

Sec. 2. “Any person violating the provisions of this Act shall be guilty of a misdemeanor, and on conviction before any Justice of the Peace, shall be punished by a fine notless than ten dollars or more than fifty dollars, or by imprisonment of not less than ten days.”

It was found by a special verdict that the defendant sold liquor in Asheville ; that the line of said Railroad ’was located two miles south of Asheville ; and that the Road had never been in process of construction within seven miles of the place of selling the liquor. Thereupon the Court held *527that the defendant was guilty. Judgment. Appeal by defendant.

Attorney General, for the State.

Messrs. A. T. $ T. F. Davidson and J. FI. Merrimon, for the defendant.

Eaibuloth, J.

This case turns on the Act of 1874-’75, ch. 126, making it unlawful for any person to sell any intoxicating liquors “ within three miles of the located line of the Asheville and Spartanburg Railroad, during the construction of the said road.”

The defendant sold liquor within three miles of the “ located line,” but not within three miles of any part of it undergoing construction, which seems to be the proper interpretation ; especially as this view remedies the evil probably aimed at.

If the Legislature intended to give exclusive jurisdiction of this offence to a Justice of the Peace, they failed to do so, by not complying with' Art. IV. § 33 (now § 27) of the Constitution.

There is error. Let this be certified to the Superior Court of Buncombe County to the end that the defendant may be discharged.

Pee, Cueiaij. Judgment reversed.