The opinion of the court was delivered by

The respondent was complained of before the City Court, and convicted, and fined for keeping a nuisance, under the act of the Legislature of 1876.

*447The sheriff, with a search-warrant, found a room in the basement of the American Hotel in the city of Burlington, which had all the appearance and appliances of a bar-room, — small quantities of different kinds of spirituous liquors, decanters, glasses, Ac. The court found that “ the intoxicating liquors specified as found in said room were kept for sale contrary.to law.”

The Act of 1876 in the first section, provides that “every saloon, restaurant, grocery, cellar,” Ac., “ and every drinking-place or room used as a place of public resort, where * * * intoxicating drink is unlawfully sold, furnished, or given away,” or kept for that purpose, “ shall be held and regarded as a common nuisance, kept in violation of law.”

It is not found that this bar-room was “ used (at the time) as a place of public resort;” and the attorney for the State claims that as this place is proved to be a' bar-room, and one of the places specifically named in the statute, it is not necessary to go further in the proof. We think the 2d, 3d, and 5th secs, of this statute, render it quite certain that none of these places are declared “ common nuisances,” unless they are, at the time, “ used as places of public resort.” The 2d sec. declares that if on trial, “ it shall be proved that intoxicating drink is kept for unlawful sale * * * in any such place of public resort as is named in the preceding sections, the court * * * shall adjudge such place to be a common nuisance.” It is said that “ saloon, restaurant, grocery,” Ac., imply that they are places of “public resort.” But the terms “ cellar ” and “ shop ” are used in the same category, and there is no more implication that such are used as places of public resort for drinking purposes, than an office or a dwelling-house. But the 3d sec., which declares the penalty for offence, is more specific. “ Whenever any person is duly convicted of keeping and maintaining any such place or room, used as a place of public resort, * * * he shall be adjudged * * * guilty of keeping and maintaining a common nuisance.” The very essence of the crime for which the penalty is incurred is, the beeping and maintaining of a place or room “ used as a place of public resort ” for drinking, Ac. And the 5th sec., which gives the form of complaint, defines the offence to be, that the accused “ did unlawfully *448keep and maintain a certaih place or room used as a place of public resort,” called and known as a “ grocery, cellar, saloon, or otherwise,” so no penalty under this statute is incurred, and no authority is given to shut up a room as a common nuisance, unless such room “ is kept and maintained ” at the time “ as a place of public resort” for this unlawful purpose.

The result is that the respondent’s exceptions are sustained, and the conviction set aside.