THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LEGAL WORKS OF HOWARD C. JOYCE. Joyce on Indictments with Precedents of Forms. $ 7.50 Joyce on Injunctions, 3 Vols. ----- 18.00 Joyce on Intoxicating liquors - - - - 7.50 Joyce on Nuisance ------- 6.30 For Sale by all I,aw Booksellers. Sent charges prepaid upon receipt of price. THE LAW RELATING TO INTOXICATING LIQUORS A TREATISE COVERING THE CONSTRUCTION AND AP- PLICATION OP ALL CONSTITUTIONAL AND STATUTORY PROVISIONS RELATING TO THE TRAFFIC IN IN- TOXICATING LIQUORS AND PROSECUTIONS FOR VIOLATIONS OF THE LIQUOR LAWS BY HOWARD C. JOYCE OF NEW YOKE CITY AUTHOR OF "LAW OP INJUNCTIONS," "LAW OF INDICTMENTS," ETC. ALBANY, N. Y. MATTHEW BENDER & COMPANY 1910 r Copyright, 1910, By MATTHEW BENDEK & COMPANY. 14- PREFACE. The questions relating to the manufacture and sale of intoxi- cating liquors, and the reduction or prevention of the evils re- sulting from the traffic therein, are most interesting and import- ant both from a sociological and legal standpoint. Following the agitation by civic bodies and organizations legis- lative bodies have in recent years passed many laws in regard thereto having for their object in some cases merely the regulation and control of the traffic and in other cases the prohibition thereof. Statutes and ordinances have been many and varied in character and have been the subject of much discussion in the courts, and their constitutionality whether their object has been regulation or prohibition, has been a matter which our legal tribunals have been constantly called upon to determine. The consideration being given to this subject is evidenced by the constantly increasing number of decisions in regard to the various legislative acts having reference thereto. It is not the purpose of the author, nor is it within the scope of this treatise, to consider the expediency of the various measures proposed or to compare their relative value and benefit. lie has, however, endeavored to present to the bench and the bar a treatise upon the law regulating the manufacture and sale of intoxi- cating liquors, considering in detail the constitutional and legis- lative provisions in regard thereto, stating the law as it stands at the present day. The constitutionality of such measures as affected by provisions of the United States constitution as well as those of the states, and the effect of the Wilson Act upon the power of 734C vi PREFACE. the states are discussed at length. The preparation of this treatise also necessarily includes such matters as prohibition, the taxing and licensing of the traffic, enactments generally of a regulative and restrictive character as to the conduct of the traffic, search and seizure laws, local option laws, and civil damage statutes. Also the questions of prosecution of offenses under the liquor laws and of evidence on the trial thereof are considered. In fact the author has in brief endeavored to prepare a treatise upon the law relating to this important subject which will be of practical value. Trusting that he has accomplished the object sought, in a man- ner satisfactory to the user and that it will meet with some portion of the approval accorded to his previous works, he respectfully submits it for consideration. New York City, June, 1910. Howard C. Joyce. TABLE OF CONTENTS. CHAPTER I. DEFINITIONS AND TERMS. PAGE Section 1. Construction of term "intoxicating liquors "—remarks gen- erally 2. " Liquor " denned * 3. " Intoxicating liquors " defined and considered 3 4. Same subject — judicial notice 5. Same subject — evidence to show character of 5 6. Same subject — name immaterial 6 7. "Spirituous liquors" defined and considered— " distilled spirits " ' 8. Same subject continued 8 9. " Intoxicating liquors "— " spirituous liquors "—where statutes specify what are " 10. Same subject continued H 11. "Ardent spirits" defined ** 12. " Malt liquor " defined . *•* 13. "Vinous liquors" defined 14. ' ' Intoxication " defined 15. " Dramshop "—"dramshop keeper "—"saloon " defined 14 16. "Tippling house" defined * 5 CHAPTER II. PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. Section 17. Alcohol 18. Ale l8 19. Beer generally " 20. Beer — strong beer— judicial notice as to character of 21 21. Beer, as an intoxicating liquor— judicial notice — decisions 21 22. Same subject continued— contrary view 23 23. Same subject— conclusion *■> 24. Lager beer ■ ~° ix TABLE OF CONTENTS. PAGE 25. Lager beer — as an intoxicating liquor 27 26. Brandy 28 27. Brandy cherries and fruit 29 28. Cider 30 29. Cider— hard cider 31 30. Cider — statutes as to 31 31. Gin 32 32. Porter 33 33. Whisky — as a spirituous liquor 33 34. Whisky — as an intoxicating liquor 41 35. Wine 42 36. Wine — as an intoxicating liquor— statutes 43 37. Medicines— compounds recognized by standard dispensatories. . 44 38. Compounds — proportion of alcohol — question of use as a bev- erage 45 39. Compounds — sale of to be used as a beverage 48 40. Compounds — good faith in making sale 49 41. Compounds — whether intoxicating liquor — question of fact — judicial notice 51 42. Compounds — whether intoxicating liquor — conclusion 52 CHAPTER III. UNITED STATES CONSTITUTIONAL PROVISIONS AFFECTING LAWS. Section 43. Power of Congress 54 44. Fourteenth Amendment to Federal Constitution as affecting power of State 56 45. Fourteenth Amendment does not permit state legislation as to liquor traffic 57 46. Other Federal Constitutional provisions as affecting right of state 58 47. Federal Constitution as affecting right of State continued. Particular laws 59 48. Power of state as affected by United States constitution — com- merce 61 49. Vance v. Vandercook. Rules stated in 62 50. Power of state as to interstate shipments generally 64 51. Sales in original packages — prior to Wilson Act 65 52. Keeping liquors in state for sale in another state 66 53. Can not forbid shipment into state 66 54. Wilson Act — effect and construction of 67 55. Wilson Act does not prevent right to order and receive 69 56. Statute limiting right to order — application to state official 69 57. Wilson Act — words " upon arrival " construed 70 58. State statute as to place of delivery and sale 71 59. Soliciting of orders 71 60. As to right to advertise 74 TABLE OF CONTENTS. xi CHAPTER IV. CONSTRUCTION OF STATUTES GENERALLY. PAGE Section 61. Constitutional provisions as to title and subject-matter of act construed 76 62. Local or special laws generally 78 63. Laws to be general and uniform 78 64. Intoxicating liquor statutes — construction of generally 79 65. Construing laws together 79 66. Construction of act— intent of legislature 80 67. "Where part of act invalid 81 68. As to exceptions in statute 81 69. Statutes affixing penalties strictly construed 82 70. Construction of amendments to statutes 83 71. Repealing laws generally 84 72. Repeal by implication 85 73. Statute denouncing two separate offenses 87 74. Political subdivisions of state — judicial notice in construing statute 87 75. One not affected by law cannot question validity 87 CHAPTER V. POWER OF STATE TO REGULATE TRAFFIC. Section 76. Liquor traffic generally 89 77. No inherent right to sell 90 78. Nature of right to sell 91 79. Constitutional provisions affecting power 92 80. Control of state generally — police power 94 81. Power of state to regulate 95 82. Legislature may impose conditions deemed proper 97 83. Right to prohibit traffic generally 98 84. Effect of license from United States 102 85. Cannot prohibit having liquors in one's possession 104 86. Prohibition by state — where property diminished in value 105 87. Same subject continued 108 88. Prohibition as affecting property values concluded 108 89. Power of state to engage in liquor traffic. 109 90. Dispensary laws — Alabama decisions 110 91. Dispensary laws — Other decisions 113 92. Dispensary laws — federal decisions 115 93. Dispensary laws — question as to creating monopoly 116 94. Dispensary act — power of mayor to enforce action under 117 95. Sales by dispensers after dispensary abolished 117 TABLE OF CONTENTS. PAG 96. Town and city agents to purchase and sell 117 97. Same subject — liabilities and rights of towns 118 98. Same subject— power of agents 119 99. Same subject — power of agents to delegate authority 120 CHAPTER VI. PARTICULAR STATUTORY REGULATIONS. Section 100. Excluding liquor traffic from certain localities 123 101. Designating saloon limits in cities and towns 124 102. Consent of owners of dwelling houses 124 103. Excluding traffic within certain distance of building or place. . 125 104. Same subject — colleges — schools — churches 126 105. As to premises and use of . . . , . 127 106. Same subject — as to entrances 128 107. Same subject — confining business to single room 129 108. Prohibiting sale in brothels 129 109. Forbidding obstruction of view of interior of saloon , 130 110. Same subject — Massachusetts laws 131 111. What obstructions are within the prohibition 122 112. Prohibiting sales to certain classes of persons 134 113. Prohibiting sales to minors 135 114. Prohibiting sales to females 137 115. Prohibiting employment of females 138 116. Filing with official list of names of employees 139 117. Closing of saloons on certain days 139 118. Closing of saloons on Sunday 141 119. Closing of saloons on Sundays — hotels 143 120. Designation of hours for keeping closed 143 121. Legislation as to quantity 144 122. Requiring seller to make returns or keep statement 146 123. Committing sale to particular classes of persons 146 124. As to sales by druggists 147 125. Same subject — requiring of prescription 148 12(5. Same subject — extent of right to sell 149 127. Returns by druggists 150 128. Requiring written application or request 151 129. As to sale by social clubs 152 130. Inspection of liquors 152 131. As to adulteration of liquors 153 132. Designation of cereals to be used in manufacture of malt liquors 156 133. As to furnishing public record of internal revenue receipt 157 TABLE OF CONTENTS. xiii CHAPTER VII. MUNICIPAL POWERS AND REGULATIONS. PAGE Section 134. Legislature may delegate power to municipal corporation 160 135. Grants strictly construed 162 136. Incidental or implied powers 163 137. Same subject — power to suppress, regulate or restrain 164 138. Power of city to prohibit 165 139. Grant of power to regulate, restrain or license 166 140. Prohibiting keeping for unlawful sale 168 141. Ordinances should be general 169 142. Ordinances must be reasonable 169 143. Where title of ordinance contains surplusage 170 144. Ordinances having extra territorial effect 170 145. Ordinances should conform to law of state 170 146. Same subject — application of rule 171 147. Same subject — engaging in liquor traffic 173 148. Same subject — ordinance providing for fine or punishment. . . . 173 149. As to powers of municipal officers 174 150. General law as repealing municipal powers and ordinances. . . . 175 151. Act conferring power on city as repealing general law 176 152. Construing statutes and ordinances together 178 153. Statute and ordinance making same act an offense 178 154. Construing ordinances together 179 155. Ordinance invalid or invalid in part 179 156. Prohibiting traffic in portions of city 180 157. Same subject — ordinances construed 182 158. As to ordinances where territory annexed to city. ...**•" 182 159. Ordinance as to screens, etc. 183 160. Ordinances as to stalls, booths or inclosures 184 161. Prohibiting sales to minors 184 102. Prohibitions as to women 185 163. Prohibitions as to employment of women 186 164. Requiring Sunday closing 187 165. Requiring closing other than Sundays 188 166. Power to designate hours of closing and opening of saloons. . . 189 167. Same subject — ordinances held valid — instances 190 168. Same subject— ordinances held invalid— instances 191 169. Ordinances as to quantity 192 170. Ordinance as to who may conduct business 193 171. Ordinances as to access of officials to premises 194 172. Ordinances affixing penalty 194 siv TABLE OF CONTENTS. CHAPTER VIII. TAXES-LEGISLATIVE POWERS. PAGE Section 173. Taxation of traffic generally 195 174. May levy tax though traffic prohibited 197 175. Classification by legislature — population of cities and towns as basis " • ■ 199 176. Taxation based on amount of business 200 177. Classification based on different kinds of liquors 201 178 Classification of wholesalers, retailers and manufacturers 202 179. Discrimination against liquors manufactured in other states. . . 205 180. Statutes making tax a lien 208 181 Disposal of taxes and license fees dependent on statute 206 182 Same subject continued 201 183. Regularity of proceeding in levying tax— presumption 219 CHAPTER IX. LICENSES— NATURE OF— LEGISLATIVE POWERS. Section 184. License defined 212 185. Purpose of license 213 186. License not a contract 213 187. No vested right created by license— not property 215 188. Same subject— Under New York statute 216 189. License fee not a tax — uniformity of taxation 217 190. Power of state to license — source of 219 191. Construction of acts generally 221 192. License subject to laws in force and subsequently passed 222 193. Repealing acts — effect on licenses 223 194. Legislature may prescribe conditions 225 195. Power of legislature as to amount of fee 227 196. Payment of fee and mode of 227 197. Same subject continued 229 198. Enforcing payment of tax or fee 230 199. Right to recover fee paid 232 200. Right to recover fee continued 234 201. Provisions as to whom license may issue to 236 202. License Laws as affecting druggists— Physicians 237 203. Local boards may be authorized to regulate and license 238 TABLE OF CONTENTS. xv CHAPTER X. LICENSES— MUNICIPAL POWERS. PAGE Section 204. State may delegate power to license to municipalities 240 205. Nature of power and exercise of 243 206. Exercise of power continued 244 207. Power to prescribe penalty 245 208. Failure or refusal of city to license 246 209. Grants strictly construed— power must be clearly given 247 210. Must not exceed power granted 248 211. Must not discriminate — interstate commerce 250 212. Power under general welfare clause in charter 252 213. Power must be exercised by ordinance 252 214. Right to impose fee or tax generally 252 215. Discretion as to amount of fee 255 216. Fee must not be prohibitory 255 217. Amount of fee as affected by state fee 256 218. City may require license fee although state also does 267 219. Power to impose conditions and make regulations 259 220. Conditions as to revoking 261 221. Prescribing limits for licensing traffic 262 222 Ordinance void in part 263 223. Delegation of power by municipality 264 224. License subject to valid ordinances 265 225. As to repeal of powers 266 CHAPTER XI. OBTAINING OF LICENSE GENERALLY. Section 226. Right to license generally — renewal. 270 227. Strict compliance with law essential to right— payment of fee. 272 228. Necessity of obtaining license 273 229. Inability to obtain license— effect of 274 230. Refusal to issue license — effect of 275 231. Form of license generally 276 232. More than one license may be required 'j? r > 233. More than one license — liquors sold in connection with other business 379 234. Licenses for hotels and taverns 379 235. To whom license may issue — corporations 280 236. To whom license may issue — foreign corporations 281 237. To whom license may issue — partners 282 238. To whom license may issue — women 282 239. Removal permits — application for. . . 282 xvi TABLE OF CONTENTS. PAGE Section 240. Applicant must possess requirements — fitness 283 241. As to character of applicant 284 242. As to the petition or application 286 243. Time of filing petition 287 244. Petition—description and location of premises 288 245. Petition— statements as to applicant 289 246. Petition — false statements — omission to answer 290 247. Petition — defective amendment 291 248. Petition — recommendation — recommendation — signing of. . . 292 249. Petition — freeholders — who are 295 250. Petition— freeholders must be bona fide 296 251. Notice of application — necessity of 297 252. Notice of application — necessity of publication of 298 253. Notice of application — sufficiency of publication 299 254. As to consents generally 300 255. Sufficiency of consent — signers 301 256. Consents of owners of dwellings — sufficiency and necessity of. 301 257. Exemption from obtaining consents — New York Liquor Tax Law 302 258. Within certain distance — nearest entrance — determining dis- tance and entrance 303 259. Words " church " and " schoolhouse " as used in license laws construed 305 260. Remonstrances generally 307 261. Remonstrances — persons authorized to remonstrate 309 262. Remonstrances— signing of 310 263. Remonstrances— right to withdraw from 311 264. Remonstrances — form and sufficiency of 312 265. Remonstrances — hearing of — procedure — appeal 313 266. Remonstrances — burden of proof 315 267. Mode of testing validity of license — collateral attack — es- toppel 316 CHAPTER XII. LICENSING BOARDS AND OFFICIALS. Section 268. Granting license ordinarily matter of discretion 318 269. Nature of discretion and exercise of 321 270. Official's duty ministerial — must issue license 321 271. Compelling issuance of license 323 272. Mandamus — what essential to show to obtain 325 273. Mandamus to compel issuance of receipt — to compel action on application 326 274. Board having discretionary power — right to appeal from action of 326 275. Where appeal allowed — parties 328 TABLE OF CONTENTS. xvii PAGE Section 276. Where appeal allowed — procedure and practice 329 277. Licensing board must act in conformity with powers 831 278. Power of board — time of granting 332 279. No power to grant license to sell In forbidden locality 334 280. License board cannot delegate power 334 281. Action by officers de facto 335 282. Ordinance granting license — duty of official to sign 336 283. Clerks should not depart from order of court in issuing 337 284. Refusal for violation of law 337 285. Refusal for violation of law — effect of conviction or decree. . . 339 286. Qualifications of members of board 339 287. Liability of members of board 340 CHAPTER XIII. RIGHTS UNDER LICENSE. Section 288. Terms of license as limiting right. 342 289. When license takes effect 343 290. Duty to obey law — as to employes 844 291. Licensee may sell by agent 344 292. Personal representatives of licensee no rights under 345 293. As to place of sale 346 294. Where license board prescribes unauthorized hour9 349 295. License to firm — to member of 349 296. License to officer of corporation. ... 350 297. Duration of license 351 298. License not assignable 352 299. License tax certificate assignable in New York 353 300. Transfer of license in Pennsylvania 355 301. License as subject of levy and sale 356 302. Rights of licensee as to stock and fixtures 357 CHAPTEPw XIY. REVOCATION, SURRENDER AND REBATE. Section 303. Right to revoke generally 359 304. Power of municipality to revoke — as to rebate 361 305. Where statute specifies causes 363 306. Effect of expiration of license 363 307. Revocation by repeal of license law 363 308. Where license contains provisions as to forfeiture 364 309. Grounds of revocation generally 364 xviii TABLE OF CONTENTS. PAGE Section 310. Unlawful sales 366 311. False statements in application 366 312. Statement as to continuous occupation — suspension by fire or accident 368 313. Violation of law — conviction for 369 314. License to partners 371 315. License to club organized to evade law 371 316. License to hotels 371 317. Petition for revocation 375 318. Answer 376 319. Parties 376 320. Who may intervene 377 321. Procedure to revoke 378 322. Necessity of notice of proceeding 379 323. Proceedings — appointment of referee . . 380 324. Exercising power to revoke — mandamus 381 325. Evidence 381 326. Staying proceedings 381 327. Not entitled to trial by jury 382 328. Costs of proceedings 382 329. Reviewing action — certiorari 383 330. Right to rebate— no statute 384 331. Right to rebate — where statute 385 332. Surrender— right to rebate — New York 385 333. Surrender— right to rebate— New York 387 334. Procedure to obtain rebate— New York 387 335. Right to rebate — mandamus — New York 388 336. Right of assignee to rebate — receiver 389 337. Right of licensee as affected by acts of employee— revocation — rebate 390 338. Effect of surrender before violation 391 CHAPTER XV. BONDS. Section 339. "Where bond required by law 393 340. Construction of — extent of liability 395 341. Effect of repeal of law 396 342. Approval and filing of 396 343. Power of board in approving — as to filing — mandamus 397 344. Bond need not strictly conform to statute 399 345. Recitals — misrecitals 400 346. Effectof blanks 400 347. As to the sureties 401 348. Amount of bond 401 349. Condition against violating statute 402 TAIJLI-; OF CONTENTS. xix PAGE Section 350. Same subject — conviction for 408 351. Condition as to gambling 404 352. Sales to minors 404 353. Sales on Sunday .... 406 354. In case of licenses to hotels 406 855. payment of fines and costs 407 356. Acts by agent of licensee 408 357. False statements in application 408 358. Surety not liable after surrender of certificate. . 409 359. Conditions not required by law 409 360. Liability for judgment 410 361. Bond only binding as to place named 410 302. Release of liability — discharge of sureties — collateral agreement 411 363. Actions upon generally 411 364. Parties to actions on 413 365. Pleading 414 366. Evidence in action on 415 367. Right to question validity of bond 415 CHAPTER XVI. LOCAL OPTION LAWS GENERALLY. Section 368. Local option laws — constitutionality of generally 417 369. Same subject — not a taking of property 420 370. Same subject — not special or class legislation — uniform and general 421 371. Same subject — not a delegation of legislative power 422 372. Local option laws — construction of generally 424 373. Constitutional provisions as to 425 374. Local option laws as repealing prior law 426 375. Local option law merely suspends prior laws 427 376. Effect of adoption on license laws 429 377. Effect of adoption — resident of local option territory may pur chase in wet territory for own use 431 378. Bindiug effect of vote on entire subdivision 433 379. Same subject — where boundaries changed 135 380. Statement of consent — Iowa 436 CHAPTER XVII. LOCAL OPTION ELECTIONS. Section 381. As to the petition generally , 439 382. Sufficiency of petition 441 383. Petition — as to signers of 442 .xx TABLE OF CONTEXTS. PAGE Section 384. " — presumption as to signers — burden of proof 444 385. Petition — duty of officials as to determining sufficiency of sig- natures 445 386. Election — order for generally 446 387. " — order for need not state exceptions as to sales 447 388. Election — order for — errors and omissions in 447 389. Election — order for — designating locality in 448 390. Order — record as to 449 391. Notices of election — publication and posting of generally 449 392. Same subject — manner and mode of publication 451 393. Same subject — presumption as to — burden of proof 452 394. Effect of irregularities in connection with preliminaries to elec- tion 453 395. Election — provisions as to time of holding of 454 396. Same subject — time prescribed with reference to another elec- tion 454 397. Election — manner of holding — generally 455 398. Same subject — as to the election officials 456 399. Same subject — as to the hours polls are open 457 400. Same subject — as to the voters •. 457 401. Same subject — as to the ballots and ballot boxes 458 402. As to the ballots continued 458 403. Returns of election — certification 459 404. Order declaring result of election — presumption as to prelim- inary steps 461 405. Sufficiency of order declaring result 462 406. Same subject — errors in connection with 462 407. Same subject — record as to 463 408. Result of election where statute requires publication of 463 409. Result of election — publication for four successive weeks 464 410. Result of election — statute silent as to time or manner of pub- lication 465 411. Result of election — presumption and evidence as to publica- tion 465 412. Contest of election— nature of right— statutes 466 413. Contest of election— proceedings 467 414. Who may contest election 469 415. Resubmission of question 469 416. " " " continued — procedure 470 417. Conclusiveness of declaration of result — collateral attack 470 418. Judicial notice of adoption— necessity of proof of 471 419. Proof of adoption of local option— sufficiency of 473 CHAPTER XVIII. CTVIL DAMAGE ACTS. Section 420. Civil damage acts — constitutionality of 476 421. Construction of acts generally 477 TABLE OF CONTENTS xx i Section 422. Same subject — application of rules 47:1 423. " Person aggrieved "—"or other persons" 480 424. Statute no extra-territorial effect 481 425. License qo protection against operation of statute 426. Effecl of repeal of statute— subsequent acl as to notice 4#2 427. Sale must be unlawful 4gg 428. Negligence and contributory negligence 484 429. Intoxication must be proximate cause 484 430. Proximate cause — application of rule. . . 485 431. Proximate cause— -where intoxicated person commits a crime and is imprisoned 487 432. Proximate cause— intoxicated person injured or killed as re- sult of altercation 4gg 433. Proximate cause — question for jury 490 434. Sale must have contributed to or caused intoxication— proxi- mate cause— must be sale to individual causing injury . . . 490 435. Sale by defendant need not be sole cause 492 436. Sales by agent of defendant 494 437. Sales by agent of defendant — exemplary damages 495 438. Sale by agent— sale of business to him not bona fide 495 439. Joint liability of defendant 495 440. Joint liability of defendant but one satisfaction 497 441. Owner or lessor— statute making him liable— construction of. . 498 442. Owner bound by knowledge of agent 502 443. Owner or lessor — exemplary damages 503 444. Owner — extent of lien against 505 445. Notice not to sell 506 446. Notice not to sell— effect on damages 508 447. Sale to prohibited classed generally— minors— intoxicated per- sons 508 448. Sales to minors — action by parents generally 510 449. Sales to minor — action by father 511 450. Sales to minor — action by mother 511 451. Sales to minor — consent of parents as bar 512 452. Sales to minor — exemplary damages 513 453. Sales to habitual drunkards 513 454. Sales to intoxicated persons 515 CHAPTER XIX. CIVIL DAMAGE ACTS— Continubd. Section 455. Who may bring action generally 518 456. Against whom action may be brought generally 518 457. Complaint or declaration 520 458. Evidence generally 521 459. Evidence— proof by plaintiff— preponderance sufficient 521 xxii TABLE OF CONTENTS. PAGE Section 460. Evidence — facts established by circumstances. 522 461. Evidence generally showing sale 523 462. Evidence— life tables 524 463. Injury— to the feelings — mental anguish — disgrace 525 464. Medical attendance as element of damages 527 465. Exemplary damages generally 527 466. Exemplary damages — statutes as to 529 467. Exemplary damages — ground for awarding— right to 530 468. Exemplary damages — no breach of peace . 531 469. Excessive damages 531 470. Injury to person or property generally 532 471. Statute as to allowance for taking care of person 533 472. Means of support — where legal obligation 534 473. Injury to means of support generally — action by wife 535 474. Means of support — right of action generally — defenses 537 475. Means of support — income of wife or ability to labor imma- terial , . . 538 476. Means of support — action by wife — effect of divorce 539 477. Means of support — action by wife — pleading 539 478. Means of support — action by wife — evidence of earnings and financial condition 540 479. Means of support — action by wife — evidence as to prior con- duct 541 480. Action by wife— evidence as to age and number of children . . 541 481. Means of support — action by wife — measure of damages — evi- dence 542 482. Action by wife — physical suffering — threats — abusive lan- guage 545 483. Action by wife — assault by husband 545 484. Action by wife — injury to property 546 485. Action by wife — consent or acquiescence of ... 547 486. Action by wife — consent or acquiescenee of continued 548 487. Action by widow — death of husband 549 488. Action by widow — death of husband continued 552 489. Action by widow— husband killed by intoxicated person 553 490. Action by wife — exemplary damages 553 491. Means of support of mother — sale to son 554 492. Action by mother in behalf of her and children— joint action. . 555 493. Means of support— action by children 556 494. Action by husband 557 495. Death of intoxicated person— no recovery by personal repre- sentatives 558 496. Action by intoxicated person 558 497. Assault by intoxicated person 559 TABLE OF CONTENTS. xxiii CHAPTER XX. SEARCH AND SEIZURE LAWS. PAGE Section 498. Search and seizure laws generally — constitutionality of gen- erally 502 499. Not a taking of private property for public use 564 500. Not invalid as denying right of trial by jury 565 501 . Statutes as to generally 566 502. Particular statutes construed 567 503. Limitations on powers 568 504. Limitations on power and exercise of continued 500 505. Liquor which may be seized generally 569 506. Liquors in hands of bailee 571 507. Seizure of liquors in transitu — of property used in trans porting 071 508. Liquors shipped into prohibited districts— seizure in hands of carrier 57 - 2 509. Liquors shipped in prohibited territory — contract of sale com- pleted there 572 510. Liquor shipped from another state — Iowa 573 511. Liquor shipped from another state — Maine 574 512. Liquor shipped from another state — South Carolina 575 513. Liquor shipped from another state — Vermont 575 514. Liquor shipped from another state — United States 576 515. Liquor shipped from another state — conclusion 577 516. Seizure of property in connection with liquors 578 517. Complaint generally .... 579 518. Sworn complaint 580 519. Warrant generally 580 520. Warrant and complaint in one instrument 582 521. Variance between complaint and warrant 582 522. AVho may complain 583 523. Alleging probable cause 584 524. Allegations as to liquors— kinds and quantities 584 525. Allegation as to intent— keeping for unlawful sale 586 526. Allegations as to owner or keeper 587 527. Description of place to be searched 587 528. Description of place to he searched— continued 589 529. Description of place to be Bearched— rules illustrated 590 530. Time or service of warrant 591 531. Search and seizure without warrant— generally 591 532. Same subject — allegations in complaint and warrant 592 533. As to arrest of person having liquors in possession 593 534. Arrest without warrant 594 535. Effect of seizure of more liquors than authorized 594 536. Notice of seizure 595 537. Claimants— effect of appearance— waiver of defects 595 xxiv TABLE OF CONTENTS. PAGE Section 538. Power and liability of officer serving — generally 597 539. Power of officer — as to place of search 598 540. Liability of officer — concluded 600 541. Duty of officer as to keeping of liquors 601 542. Acts of officer de facto 601 543. Officer's returns 601 544. Actions to recover liquor seized — replevin 602 545. Nature of proceedings for forfeiture — proceedings in rem ... . 604 546. Same subject — whether civil or criminal 605 547. Proceedings for forfeiture and punishment of offender separate. 606 548. No defense that intent was that of agent of owner 606 549. Finding as presumptive evidence of unlawful keeping — statutes 607 550. Evidence generally 608 551. Proceedings for forfeiture — judgment for 609 552. Right to return of liquors seized 611 CHAPTER XXI. PENALTIES. Section 553. Statutes as to penalties — generally 612 555. Ordinance as to penalties — generally 613 555. Contesting validity of ordinance 613 536. Sales to minors 614 557. Sales by druggists 614 558. Nature of proceeding 615 559. Who may enforce 616 560. Officials designated cannot delegate power 618 561. For whose benefit recoverable 619 562. Method of recovery prescribed by statute .... 619 563. Recovery generally — proceeding for 620 564. Recovery — extent of 620 565. Persons liable for 621 566. Liability of sureties on bond 621 567. Complaint 622 568. Answer 623 569. Evidence — admissibility 623 570. Evidence — burden of proof 624 571. Defenses 625 572. Where violation induced or procured by officials. 625 TABLE OF CONTENTS. xxv CHAPTER XXII. SALES BY SOCIAL CLUBS. PAGE Section 573. Sales by social clubs,— generally 629 574. Alabama 629 575. California 630 576. Colorado . 577. District of Columbia 632 578. Georgia 633 579. Illinois , <;:, ; 580. Indiana 635 581. Iowa r,::> 582. Kansas 636 583. Kentucky r,: ; ; 584. Louisiana 637 585. Maine 638 586. Maryland 638 587. Massachusetts 640 588. Michigan 643 589. Minnesota 64H 590. Mississippi til) 591 . Missouri 645 592. Montana 645 593. Nebraska 646 594. New Jersey 646 595. New York 640 596. North Carolina 648 597. Oregon 64U 598. Pennsylvania 649 599. South Carolina 651 600. Tennessee 652 601. Texas 653 602. Virginia 65i 603. Washington 653 604. West Virginia 65 605. United States 654 606. England 655 007. Conclusion 657 CHAPTER XXIII. INJUNCTION AND ABATEMENT. Section 608. When traffic a nuisance— generally 659 609. Right of individuals to abate 660 610. Injunction and abatement— statutes as to constitutional 661 xxvi TABLE OF CONTENTS. PAGE Section 611. Particular statutes construed 662 612. Statute authorizing proceeding in equity 663 613. Municipal powers generally 663 614. Nature of proceeding 664 615. Remedy by in j auction— generally 665 616. Injunction — instances 667 617. Temporary injunction 667 618. Right of individual— private nuisance 668 619. Right to a second injunction 668 620. Who may be enjoined 669 621. Injunction against owner of building— when granted 669 622. Injunction against owner of building— when not granted 670 623. Covenant not to sell liquors — enjoining breach of 671 624. Who may institute proceedings 673 625. Petition — form and sufficiency of 674 626. Answer 675 627. Evidence 675 628. Defenses— generally 676 629. Effect of discontinuance of nuisance 677 630. Judgment or decree 678 631. Modifying decree 679 632. Contempt— proceedings to punish for— nature of 679 633. Contempt— sufficiency of information 681 634. Contempt— what constitutes • • 681 635. Effect of appearance in court— contempt 682 636. Conviction as prerequisite to abatement 683 CHAPTER XXIV. INDICTMENTS AND INFORMATIONS. Section 637. Charging the offense— generally 685 638. Charging the offense — application of general rules 686 639. Errors in spelling 688 640. Defendants— joinder of 688 641. Name of accused 688 642. Charging class to which defendant belongs 689 643. Name of purchaser of liquor 690 644. Allegation as to purpose for which sold 692 645. Stating offense in caption 693 646. Indictment must not charge disjunctively 693 647. Where statute is in disjunctive— use of conjunctive 694 648. Surplusage does not vitiate 695 649. Matters of evidence 696 650. Matters of defense 696 697 651. Want of a license. TABLE OF CONTEXTS. xxvii PAGE NOiXDag 652. Sale to minor — want of consent of parent or guardian 697 653. Averment as to place — generally 698 654. Averment as to place continued 699 655. Averment as to place — description of building 699 656. Charging time of offense — generally 700 657. Precise time not essential 701 658. Offences consisting of succession of acts — charging with a continuando 702 659. Time of essence of offense — sale on Sundays 702 660. Sales on election day 7 1 13 661. Knowledge— intent To 1 662. General rule as to charging in language of statute 705 663. Exceptions in statute — rule as to 707 664. Exceptions in statute — application of rule , 708 665. Duplicity 709 666. Indictments not duplicitious 709 667. Joinder of offenses 711 CHAPTER XXV EVIDENCE. Section 668. Burden of proof generally 712 669. Writings, documents and records as evidence 713 670. Evidence as to license 714 671. Circumstantial evidence 715 672. Circumstantial evidence continued 716 673. Whether liquor intoxicating — burden of proof 716 674. Whether liquor intoxicating — evidence as to 717 675. Evidence as to kind of liquor 718 676. Evidence as to place 718 677. Evidence as to time 71($ '678. Sales on Sunday . . . . , 720 679. Evidence as to keeping open on Sunday 721 680. Intent knowledge or good faith on part of defendant 722 681. As to keeping place for unlawful selling — liquor nuisance. .. . 724 682. As to liquors kept for unlawful sale 725 683. License from United States . . . 727 684. As to sales to prohibited classes 728 685. Burden of proof — defenses 729 686. Burden of proof — license or authority to sell 731 687. As to violation of instructions by agent 732 688. Sale by an agent — evidence showing may be sufficient 733 TABLE OF CASES. THE REFERENCES ARE TO SECTIONS. SECTIONS Aaron v. State, 34 Tex. Cr. 103 378, 397 Abbott v. Sartori, 57 Iowa, 656 557 Abrams v. Sandholm, 119 Iowa, 583 625 Acken v. Inglekoff (Neb. 1909), 119 N. W. 456 435, 462, 481, 482 Adams v. Cronin, 29 Colo. 488 114 Adams v. Gormley, 69 Ga. 743 268 Adams v. Hackett, 27 N. H. 289 187, 193 Adams v. Kelly, 17 Tex. Civ. App. 479 378 Adams v. Mayor of Albany, 29 Ga. 36 145 Adams v. McGlincby, 66 Me. 474 519 Adams v. Miller, 81 Miss. 613 365 Adams v. Smith (Ind. S. C. 1910), 90 N. E. 625 259, 266 Adams v. Stephens, 88 Ky. 443 225 Adams Express Co. v. Commonwealth, 124 Ky. 182 53, 57 Adams Express Co. v. Iowa, 196 Iowa 147 54 Adams Express Co. v. Kentucky, 214 IT. S. 218 48, 49, 53, 57 Adams Express Co. v. Kentucky, 206 U. S. 129 58 Adler v. State, 55 Ala. 16 12, 13 Adler v. Whitbeck, 44 Ohio St. 539 45, 63, 173, 174, 184 Adriance, Matter of, 59 App. Div. (N. Y.) 440 354 Akin v. State, 14 Tex. App. 142 381 Albany Brewing Co. v. Ban k ley, 42 App. Div. (N. Y.) 335 334 Albertson v. Wallace, 81 N. C. 479 176 Albia v. O'Harra, 64 Iowa 297 676 Albrecht v. State, 62 Miss. 516 366 Albrecht v. State, 8 Tex. App. 216 176 Albrecht v. Walker, 73 111. 69 465 Aldrich v. Harvey, 50 Vt, 162 455 Aldrich v. Parnell, L47 Mas.. 409 440 Aldrich v. Sager. 9 Hun (N. Y.) 537 ■. 464 Alexander v. State, 77 Ark, 294, 297 227, 330 Alexander v. State, 29 Tex. 295 637 Alsrer v. Weston, 14 Johns 231 298 Allen v. Houck & Dreter Co. (Tex. Civ. App. 1906), 92 S. W. 993, 996 340. 842, 3G6 xxi\ xxx TABLE OF CASES. SECTIONS Allen v. Staples, 6 Gray (Mass.) 491 498, 519, 544 Allentown v. Gross, 132 Pa. St. 319 214 Allman v. State, 69 Ind. 387 644 Allred v. State, 89 Ala. 112 7, 12, 13, 41 Allsnian v. Oklahoma City, 21 Okla. 142 331 Allyn. Appeal of, 81 Conn. 534 47, 81, 83, 195 Altenburgh v. Commonwealth, 126 Pa. St. 602 112, 113 Ambrose v. State, 6 Ind. 351 153 American Express Co. v. Iowa, 196 U. S. 133 54 American Surety Co. v. State (Ind. A. C. 1909), 90 N. E. 99 487 American Woolen Co. v. North Smithfield, 28 R. I. 546 258, 261 Amerman v. Hill, 52 N. J. L. 326 234 Amperse v. Kalamazoo, 59 Mich. 78 238 Amperse v. Winslow, 75 Mich. 234 343 Anderson v. Brewster, 44 Ohio St. 576 190 Anderson v. Commonwealth, 13 Bush. 485 83 Anderson v. Commonwealth, 105 Va. 533 345, 349, 363 Anderson v. State, 39 Ind. 553 688 Anderson v. Van Buren, Circuit Judge, 130 Mich. 695, 697. .. . 637, 638, 643, 662 Anderson & Co v. Diaz, 77 Ark. 606 423 Andreas v. Beaumont (Tex. Civ. 1908), 113 S. W. 614 221 Andresen v. Jetter, 76 Neb. 520 457 Androscoggin Railroad Co. v. Richards, 41 Me. 233 505, 539 Anheuser-Busch Brewing Co. v. Fullerton, 83 Iowa 760 544 Anthony v. Krey, 70 Mich. 629 365, 456 Applegate v. Winebrenner, 67 Iowa. 235 483 Applegate v. Winebrenner, 66 Iowa 67 624 Application of Henry In re, 124 Iowa 358 268 Application of King In re, 72 Neb. 576 291 Application of Smith, 126 Iowa 128 240, 275 Arberry v. Beavers, 6 Tex. 473 272 Archer v. State, 10 Tex. App. 482 668 Arie v. State (Okla. 1909), 100 Pac. 23 186, 307 Arizona v. Connell, 2 Ariz. 339 175 Arlstock v. Page, 77 Va. 386 269 Army & Navy Club v. District of Columbia, 8 App. D. C. 544 577 Arnett v. Wright, 18 Okla. 337 298 Arnold v. Barkalow, 73 Iowa 183 444 Arnold, Matter of, 32 Misc. R. (N. Y.) 439 402 Arlington v. Commonwealth, 87 Va. 96 649, 653, 657 Arthur v. Flanders, 10 Gray (Mass) 107 540 Arszman In re, 40 Ind. App. 218 156 Aschenback v. Carey (Pa. 1909), 73 Atl. 435 292 Ashley v. State, 92 Ind. 559 64 3 Assaria v. Wells, 68 Kan. 787 137 Atkins v. State, 60 Ala. 45 685 Atkins v. Town of Randolph, 31 Vt. 226 83, 96 Attorney General v. Huebner, 91 Mich. 436 339 Attorney General v. Justices, 27 N. C. 315 269, 271, 287 Attorney General v. Lawton, 30 Mich. 386 130 TABLE OF CASES. xxxi B£( l [Ol - Aulanier v. The Govnor, 1 Tex. 653 l'.is Austin v. Atlantic City, 48 N. J. L. 118 250 Austin v. State, 10 Mo. 591 201 . B Babb's License, 2 Pa. Super Ct. 38 241 Backes v. Dant, 55 Ind. 181 487 Backman v. Brown, 57 Mo. App. 68 565 Backman v. Phillipsburg, 68 N. J. L. 552 25u Bacon v. Jacob, 63 Hun (N. Y.) 51 421 Badgett v. State (Ala. 1908), 48 So. 54 41k Baeumel v. State, 26 Fla. 71 664, 686 Bailey v. Raleigh, 130 N. C. 209, 213 199, 204 Bailey v. State, 30 Neb. 855 .155 Bailey & Mease v. Nester's Licenses, 5 Pa. Dist. R. 172 242, 247 Bain v. State, 67 Miss. 554 403 Baker v. Bechurth, 29 Ohio St. 314 427 Baker v. Bourcicanet, 1 Daly (N. Y.) 24 510 Baker v. Bucklin, 43 App. Div. 336 199 Baker v. McCoy, 58 Iowa 216. 439 Baker v. Pope, 2 Hun 556 420 Baker v. Summers, 201 111. 52 458 Baldwin v. Smith, 82 111. 162 146, 224 Balleutine v. State, 48 Ark. 45 309, 314 Ballew v. State, 84 Ga. 138 .' 248 Balogh v. Lyman, 6 App. Div. (N. Y.) 271 173 Bancroft v. Dumas, 21 Vt. 456 370 Barbier v. Connolly, 113 U. S. 27 44 Barkam v. State, 41 Tex. Cr. 188 407 Barker v. State, 118 Ga. 35 70, 71, 83 Barker v. State, 117 Ga. 428 648 Barks v. Woodruff, 12 111. App. 96 484 Barnaby v. Wood, 50 Ind. 405 420, 436, 441, 477 Barnard v. Graham, 120 Ind. 135 242, 244 Barnard v. Houghton's Estate, 34 Vt. 264 122 Barnard v. State (Ala. 1909), 48 So. 483 298, 301 Barnard, Matter of, 48 App. Div. (N. Y.) 423 288, 311 Barnegat Beach Ass'n v. Busby, 44 N. J. L. 627 268, 274 Barnes v. Commissioners, 135 N. C. 27 271 Barnes v. Rhoades (Ind. 1909), 87 N. E. 643 264 Barnes v. State, 49 Ala. 342 103. 293 Barnes v. State, 19 Conn. 398 687 Barnesville v. Means, 128 Ga. 197 386 Barnesville, City of, v. Murphy, 113 Ga. 779 145 Barrett v. Dolan, 130 Mass. 366 487 Barringer v. Florence, 41 S. C. 501 209 Barry County v. Sherman (Mo. App. 1910), 125 S. W. 781 348 Bartel v. Hobson, 107 Iowa. 644 635 xxxii TABLE OF CASES. SECTIONS Bartemever v. Iowa, 18 Wall. (TJ. S.) 129 86 Barth v. State, 18 Conn. 431, 432 637, 646, 662 Barton v. Leate, 43 Fla. 477 k 419 Bates v. Davis, 76 111. 22, 21 465 Bates v. Dunning, 49 Conn. 479 268 Baton Rogue v. Butler, 118 La. 73 : 134 Bankhart v. Freeborn, 42 Ohio St. 52 112 Bauer v. Board of Denmark. T. p. (Mich. 1909) 122 K W. 121 391 Baxter v. State, 49 Oreg. 353 368, 375, 378 Beaman v. Adams, 76 HI. 331 422 Bean v. Green, 33 Ohio St. 444 490 Beane v. State, 72 Ark. 368 688 Beards Appeal, 64 Conn. 526 275 Beaty Ex. parte, 21 Tex. App. 426 386 Beauvoir Club v. State, 148 Ala. 643 71, 81, 118, 574 Beckerle v. Brandon, 229 111. 323 451 Beckham v. Howard, 83 Ga. 89 210, 268 Beckman v. Charlestown. 42 N. H. 125 98 Bedore v. Newton, 54 N. H. 117 420 Beele v. The State, 6 Ind. 501 86 Beem v. Chestnut, 120 Ind. 390 482 Beer Co. v. Massachusetts, 97 U. S. 25, 32 77, 80, 86 Beers v. Walhizer, 43 Hun (N. Y.) 254 431 Beeses' License, 28 Pa. Co. Ct. R. 353 300 Behler v. Ackley (Ind. N. C. 1909), 89 N. E. 877 263, 264 Bell v. State, 91 Ga. 227 22, 374 Bell v. State, 28 Tex. App. 96 82 Bell v. Watson, 3 Lea. (Tenn.) 328 173 Bell Ex parte, 24 Tex. App. 428 81, 83, 339 Bellison v. Apland, 115 Iowa, 599 439, 473 Bell's Gap. R. Co. v. Pennsylvania, 134 U. S. 238 44 Benalleck v. People, 31 Mich. 200 559, 567 Bennett v. Miller's Estate (Mich. 1910), 125 N. W. 2 447, 487 Bennett v. Otto, 68 Neb. 652 250, 276 Bennett v. People, 30 111. 389 17, 218 Benson v. Moore, 15 Wend. (N. Y.) 260 288 Benson v. State. 39 Tex. Cr. App. 56 Bergman v. Cleveland, 39 Ohio St. 651 163 meyer v. Greenup County, 19 Ky. Law Rep. 1599 193, 200 Berkehenner v. State (Ind. A. C. 1909), 88 N. E. 634 454 Berry v. Cramer, 58 N. J. L. 278 216 Bertholf v. O'Reilly, 74 N. Y. 509, 524 81, 420, 434, 441 Bertholf v. O'Reilly, 8 Hun (N. Y.) 16 428 Bertrand v. State, 73 Miss. 51 37, 40 Bertrand, Matter of, 40 Misc. R. (N. Y.) 536 416 Betting v. Hobbett, 142 HI. 72 454,475,478 Bilbro v. State, 7 Humph (Tenn.) 334 661 Billings v. State, 41 Tex. Cr. App. 253 677 Bills v. State (Tex. Cr. 1909), 117 S. W. 835 418 Bingham County v. Fidelity and D. Co., 13 Ida. 34 228 TABU-: OF CASES. XXXlll SECTIONS Birknuin v. Fahrenltold (Tex. Civ. App. 1908), 114 S. W. 829 482 Birmingham v. People, 40 Colo. 302 879 Bissell v. Starzinger,l 12 Iowa, 266 4.-,:',, .\ard of Education v. Aberdeen, 56 Miss. 518 182 Board of Excise v. Barrie, 34 X. Y. 657 194 Board of Excise v. Sackrider, 35 X. Y. 156 560 Board of Trustees v. Scott, 30 Ky. Law Rep. 894 79, 175, 378 Board of Trustees v. Watson, 5 Bush. 660 134 Boches v. State, 33 Tex. Cr. 96 660 Bode v. State, 7 Gill, 626 642 Bodge v. Hughes, 53 N. H. 614 497 Bogard v. State (Tex, Cr. App. 1908), 53 S. W. 494 653 Bohler v. Schneider, 49 Ga. 195 173, 178 Bohrmann's Appeal, 81 Conn. 458 239 Boldt v. State, 60 Ark. 600 :;; I Boldt v. State, 72 Wis. 7 662 Bolduc v. Randall, lor Mass. 121 Bolton v. Becker (Neb. 1908), 119 X. W 111 284 Bolton v. Hegner (Neb. 1908), 118 N. W. 1098 241, 284 Bonacher v. State, 12 Fla. 848 ::7i; Bond v. State, 47 Miss. 39 686 Boomershine v. Uline, 159 Ind. 500 261, 264 Boone v. State, 10 Tex. App. 418 105 Boos v. State. 1 1 End. App. 257 465 Borchman v. Phillipsburg, 68 X. J. L. 552 Bordwell v. Dills, 7<> Ark. 175 ;;s:i Bordwell v. State, 7 7 Ark. 161 100, 307, 397, 403 Borgasou v. Eklund, 96 111. App. 443 458 xxx i v TABLE OF CASES. Botto v. State, 26 Miss. 108 676 Bound v. South Carolina Ry. Co., 57 Fed. 485 504, 514, 531 Bowden v. Voorheis, 135 Mich. 648 439, 467 Bowling Green v. McMullen (Ky. 1910), 122, S. W. 823 376 Bowman v. Chicago & N. W. R. Co., 125 U. S. 465 48, 53 Bowman v. State, 38 Tex. Cr. 14 368, 393 Bouvier Specialty Co. v. James (Ky. C. C. 1909), 118 S. W. 381 177 Bowyer v. Percy Supper Club, Limited, 69 Law P. R. K S. 447 606 Boyd v. Bryant, 35 Ark. 69 , 104 Boyd v. Watt, 27 Ohio St. 259 439 Boydan v. Hoberstumpf, 129 Mich. 137 467, 480 Boyles' License, 190 Pa. St. 577 190 Braconier v. Packard, 136 Mass. 50 253, 277, 282 Bradford v. Boley, 167 Pa. St. 506 429, 431 Bradley v. State, 121 Ga. 201 26, 34, 39, 41 Bradley, Matter of, 22 Misc. R. (N. Y.) 301 336 Bragg v. State, 126 Ga. 442 677 Brandit v. McEntee, 53 111. App. 467 436, 478 Brandt v. State, 17 Ind. App. 311 456, 457 Brannan v. Adams, 76 111. 331 471 Brannon v. Silvernail, 81 111. 434 465 Brantigam v. White, 73 111. 561 437, 463, 465 Brantley v. State, 91 Ala. 47 674 Braswell v. Commonwealth, 5 Bush. (Ky ) 554 234 Braun Ex parte, 141 Cal. 204 204 Brazil, Town of, v. Kiess, 55 Ind. 14 199 Breen's License, 2 Pa. Dist. R. 652 300 Breese v. Winters (N. J. L. 1909), 73 Atl. 41 278, 284 Brennan v. Roberts. 125 Iowa 615 630, 633 Breslin, Matter of , 45 Hun (N. Y.) 219 119, 277 Brewer v. Nutt, 118 Ga. 257 198 Brewing Co. v. Campbell, 66 Kan. 361 516 Brewing Co's License, 14 Pa. Super. Ct. 188 235, 245 Brewster, Matter of, 85 App. Div. (K Y.) 235 257 Brewster, Matter of, 39 Misc. R. (K Y.) 689 311, 312, 316 Bridewell v. Ward, 72 Ark. 1S7 368 Bridges v. State, 37 Ark. 224 666 Briffitt v. State, 58 Wis. 39 21 Brigancev. Halock, 44 Tex. Cir. App. 277 402 Briggs v. McKinky, 131 Mich. 154 343 Britton v. Commonwealth, 105 Pa. St. 311 293 Brock v. State, 65 Ga. 437 23 ° Brockway v. Patterson, 72 Mich. 122 429, 462, 487, 489 Brockway v. Petted, 79 Mich. 620 840, 343 Brooklyn v. Toynbee, 31 Barb. (N. Y.) 282 564 Brooks v. Cook, 44 Mich. 617 49 6 Bronson v. Dunn, 124 Ind. 252 241 Bronson v. Oberlen, 41 Ohio St. 476 134, 139 Brophy v. City of Perth Ambory, 44 N. J. L. 217 558 Brow v. State, 103 Ind. 133 684 TABLE OF CASES. xxxv SECTIONS Brown v. Commonwealth, 98 Ky. G52 83, 204, 378 Brown v. Commonwealth, 114 Pa. St. 335 ;;.V> Brown v. Dicus (Ind. 1909), 87 N. E. 716 275 Brown v. Lutz, 36 Neb. 527 142, 249, 251, 297 Brown v. Matthews, 51 N. J. L. 253 260 Brown v. Moore (Ind. 1909), 87 N. E. 974 275 Brown v. Murphy, 51 N. J. L. 250 251 Brown v. Perkins, 12 Gray (Mass.) 89 609 Brown v. State, 73 Ga. 38 173 Brown v. State, 9 Neb. 189 202 Brown v. State, 27 Tex. 335 226, 289 Brown Ex parte, 38 Tex. Cr. 295 85 Brown Ex parte, 35 Tex. Cr. 443 396, 409 Brown, Matter of, 38 Misc. R. (N. Y.) 157 403 Brown-Foreman Co. v. Commonwealth, 30 Ky. Law Rep. 793 50, 177 Brownrigg v. Town Council of Livington, 126 Ala. 93 138 Bruce v. State, 36 Tex. Cr. 53 387, 388, 389, 404 Brumley v. State, 11 Tex. App. 114 639 Bruner v. Clay City, 100 Ky. 567 200 Bruner v. Stanton, 19 Ky. Law Rep. 1514 200 Bryant v. Dv. Moss, 34 Ind. App. 473 242, 261 Bryant v. Tidgewell, 133 Mass. 86 435, 439, 483 Buck v. Haddock, 167 111. 219 492, 493 Buck v. Powers (Iowa 1909), 121 N. TV. 1042 634 Buckham v. Grape, 65 Iowa 535 444, 456 Buckmaster v. HcElroy, 20 Neb. 557 496 Buckner v. State, 56 Ind. 207 677 Buck's Estate, 185 Pa. St. 57 292 Buckworth v. Crawford, 24 111. App. 603 439 Buhlman v. Humphrey, 86 Iowa 597 634 Buffalo v. Smith, 8 Hisc. R. (N. Y.) 348 570 Bukman v. Fahrenthold (Tex. Civ. App. 1908), 114 S. W. 428 445 Bunnells' License, 11 Pa. Co. Ct. R. 404 268 Burch v. Mayor, 42 Ga. 596 233 Burch v. Ocilla City of (Ga. App. 1908), 62 S. E. 666 11 Burch v. Republic, 1 Tex. 608 637, 655, 662 Busch v. Webb, 122 Fed. 655 45, 77, 368 Burchell v. State, 47 Tex. Civ. App. 393 610, 61 1 Burfiend v. Hamilton, 20 Mont. 343 180 Burke v. Collins, 18 S. D. 190 271 Burks v. State, 51 Tex. Cr. 637 403 Burlew v. Schiller. 41 Tex. Civ. App. 202 -174 Burlington v. Burngardner, 42 Iowa 673 209 Burlington, City of v. Kellar, 18 Iowa 59 135. 145, 212 Burnett v. State, 72 Miss. 994 683 Burnett Ex parte, 30 Ala. 461 136, 216 Burns' A.ppeal, 76 Conn. 395 246, 268, 276 Burns In re (Ind, 1909), 87 X. E. 1028 201, 244 Burnside v. Lincoln County Court. 86 Ky. 423 45, 75, 77, 80 Burrage Ex parte, 26 Tex. App. 35 406 xxxvi TABLE OF CASES. SECTIONS Bush v. District of Columbus, 1 App. Cas. (D. C.) 1 , 193 Bush V. .Murray, 66 Me. 472 456 Butler v. Fiscal Court, 31 Ky. Law Rep. 596 392 Butler v. Merritt, 113 Ga. 238 91 Butler v. Palmer, 1 Hill 324 426 Butler v. State, 25 Fla. 347 41, 375, 418 Butler v. State, 89 Ga. 821 104 Byrain v. Polk County, 7G Iowa 75 519 Byrd v. State, 51 Tex. 539 418 c Cain v. Allen, 168 Ind. 8 263 Cain Ex parte (Okla. 1908), 93 Pac. 974 78, 79, 83 Caines v. State, 23 Tex. App. 449 381 Calder v. Brill, 3 Dall. 386 46 Calderwood v. Jos. Schlutz Brew. Co. (Minn. 1909), 121 K W. 221,. 304 Caldwell v. Barrett, 73 Ga. 604 386 Caldwell v. State, 43 Fla. 545 36, 649 California Ex parte Campbell, 74 Cal. 20 134 Calloway v. Laydon, 47 Iowa 456 463, 465 Cambridge Springs Co. License, 20 Pa. Co. Ct. 564 234 Cameron v. Fellows, 109 Iowa 534 380 Cameron v. Tucker, 104 Iowa 211 619 Camp v. State, 27 Ala. 53 151 Campbell v. Campbell, City of (Ga. 1909), 64 S. E. 815 155,, 156, 159, 162, 164, 165, 166, 169, 170 Campbell v. Harmon, 96 Me. 87 466, 467 Campbell v. Jackman Bros., 140 Iowa 475 608, 615 Campbell v. Jackman Bros., (Iowa, 1909) 118 N. W. 775 76, 80 Campbell v. Moran, 71 Neb. 615 249 Campbell v. State (Ind. S. C, 1909), 87 N. E. 212 500, 537, 545, 547 Campbell v. Thomasville, City of (Ga. 1909), 64 S. E. 815.. .19, 138, 145, 212, 220 Campbell Ex parte, 74 Cal. 20 45 Caudill v. Commonwealth, 23 Ky. Law Rep. 2139 284 Canfield v. Leadville, 7 Colo. App. 453 124 Cannelton v. Collins (Ind. S. C. 1909), 88 N. E. 66 558 Conon City v. Manning, 43 Colo. 144 576 Canova v. Williams, 41 Fla. 509 155, 204, 206 Cantwell v. State, 47 Tex. Cr. 511 382, 418 Capritz v. State, 1 Md. 569 643 Carbondale v. Wade, 106 111! App. 654 184, 186, 187, 223, 304, 321 Carey v. State, 70 Ohio St. 121 386 Carl v. State, 89 Ala. 93 38, 40 Carl v. State, 87 Ala. 17 674 Carleton v. Rugg, 149 Mass. 550 610 Carlson's License, 127 Past 330 310 Carlton v. Krueger (Tex. Civ. App. 1909), 115 S. W. 619 440, 447 Carmon v. State, 18 Ind. 450 34 TAULK OF CASES. xxxvii Carpenter v. Pennsylvania, 17 How. 450 46 Carr v. Town of Fowler, 71 [nd. 590 145 Carroll v. "Wright. 131 Ga. 728 175. 190, 297 Carter v. Bartel, L10 Iowa 211 630 Carter v. Bernstein Bros., 104 Iowa 572 434, 436, 457, 474 Cuter v. Nicol, 116 Iowa 019 861 Carter v. State, 68 Ga. 820 643 Carter v. Steyer, 93 Iowa 588 619 Carson v. State, 69 Alii. 235 ■ 201 Casey v. Painter, 50 Ohio St. 527 445 Cason v. State, 37 Fla. 31 375 Cassidy v. Mayor of City Macon (Ga. 1909) , 66 S. E. 941 303 Castellano v. Marks, 37 Tex. Civ. App. 273 247 Castle v. Bell, 145 Ind. 8 240, 262, 263 Caswell v. State, 2 Humph. (Tenn.) 402 35 Catherwood v. Collins, 48 Pa. St. 480 130 Catoir v. AVatterson, 38 Ohio St. 319 200 Cautiori v. Tillman, 54 Fed. 969 77 Cercle Francais de L'Harmoine v. French, 44 Hun (N. Y.) 123 595 Chaddock v. State, 18 Tex. App. 567 164 Chalmers v. Funk, 76 Va. 717 372 Chamberlain v. State, 50 Ark. 132 193 Chamberlain v. Tecumseh City of, 43 Neb. 221 200 Chamlee v. Davis, 115 Ga. 266 394 Champer v. Greencastle, City of, 138 Ind. 339 135, 136, 142, 159 Chandler v. Ruebelt, 83 Ind. 139 241, 286 Chapman v. State, 37 Tex. Cr. 167 387, 404, 405, 406 Chase v. Kenniston, 76 Me. 209 435, 457, 459 Cheadle v. State, 4 Ohio St. 477 668 Cheney v. Coughlin, 201 Mass. 204 244, 276, 277 Cherry v. Commonwealth, 78 Va. 375 325, 327 Chesapeake Club v. State, 63 Md. 446 586 Chicago, City of, v. Enright, 27 111. App. 557 198 Chicago, City of, v. Metcher, 183 111. 104 139 Chicago Co. v. Chicago, 88 111. 221 144 Chicago &, Northern P. R. Co. v. Chicago, 174 111. 439 213 Childers v. Shepherd, 142 Ala. 385 90 Chippewa Lumber Co. v. Tremper, 75 Mich. 36 623 Chmelir v. Sawyer, 42 Neb. 362 435 Christenson Ex parte, 85 Cal. 208 194 Church v. Higham, 44 Iowa 482 559, 571 Cincinnati N. O. &T. P. R. Co. v. Commonwealth, 31 Ky. L. R. 954 City Council Ex parte, 64 Ala. 463 204 Clark v. Daniel, 77 Ark. 122 Clark v. Riddle, 101 Iowa 270 015, 626, 628 Clark v. State, 40 Tex. Cr. 107 688, 688 Clark Ex parte, 09 Ark. 435 268 Claus v. Hardy, 31Neb.'85.. 227 Claussen v. City of Luverne, 103 Minn. 491 185. 190. 303, 304 Clement, Matter of, 129 App. Div. (N. Y). 229 294 xxxviii TABLE OF CASES. SECTIONS Clement, Matter of, 62 Misc. R. (N. Y). 512 338 Clement, Matter of, 29 Misc R. (X. Y.) 29 383 Clement v. Smith, 128 App. Div. (X. Y.) 859 361 Clement v. Viscose, 118 X. Y. Supp. 613 319, 338 Cleveland R. Co. v. Backus, 133 Ind. 513 500 Clevinger v. Town of Rushville, 90 Ind. 258 207 Clinton, City of, v. Grusendorf, 80 Iowa 117 166 Clinton v. Laning, 73 Mich. 284 360, 367 Clinton v. Laning, 61 Mich. 355 463, 472 Clohessy v. Rordelheim, 99 Pa. St. 56 131 Cobleigh v. McBride, 45 Iowa 116 , '. . 569 Cochran v. State, 26 Tex. 678 653 Cockerell v. Commonwealth, 115 Ky. 296 674 Coe Ex parte, 19 Ark. 688 248 Cofer v. Commonwealth, 27 Ky. Law Rep. 934 214 Cofer v. Elizabethtown, City of, 30 Ky. Law Rep. 706 195, 214 Cofield v. Britton (Tex. Civ. App. 1908), 109 S. W. 493 386, 394, 412 Coggeshall v. Pollitt, 15 R. I. 168 350 Cohen v. Jerrett, 42 Md. 571 248 Cohen v. King Knob Club, 55 W. Va. 108 616 Cohen v. Rice (Tex. C. A.), 101 S. W. 1052 156 Cohen In re. (Xeb. 1909), 121 W. W. 107 249, 250 Colburn v. Spencer, 177 Mass. 473 460 Colder v. Kurby, 5 Gray 597 186 Colder v. Sheppard, 61 Ind. 219 241 Cole v. Commonwealth, 30 Ky. Law Rep. 385 413 Cole v. McClendon, 109 Ga. 183 394 Cole v. State, 120 Ga. 485 672 Coleman v. People, 78 111. App. 210 456 Coleman v. state, 53 Tex. Cr. 578 683 Colglazier v. McClary, 5 Xeb. (Xuoff) 332 250 Collier v. Early, 54 Ind. 559 402, 487 Collins v. Barrier, 64 Miss. 21 248, 264, 275 Collins v. Marvil, 145 Ind. 531 262 Collins v. Xoyes, 66 X. H. 619 516 Collins v. State, 152 Ala. 90 210 Collins v. State, 38 Ind. App. 625 66 Columbia Club v. McMaster, 35 S. C. 1 209, 599 Columbus City v. Cutcomb, 61 Iowa 672 186 Colwell v. State, 112 Ga. 75 38 Combs v. State, 81 Ga. 780 418 Commissioners v. Kane, 47 X. C. 288 274 Commissioners v. Morris. 02 Ga. 538 199 missioners Court v. Beall, 98 Tex. 104 389 Common Council v. Fairchild, 1 Ind. 315 229 mon Council of Oshkosh v. State, 59 Wis. 425 267, 322, 328 Commonwealth v. Adams, 1 Gray 481 656 Commonwealth v. Anberton, 133 Mass. 404 110 Commonwealth v. Anthes, 12 Gray (Mass.) 29 25 Commonwealth v. Asbury, 104 Ky. 320 194 TAULL OF CASES. xxx IX Commonwealth v. Austin, 97 Mass. 595 Commonwealth v. Baker, 152 Mass. 337 ;,- ; ( N >niiiii hi wealth v. Benge, 13 K\ . I.. Rep. 591 643 Commonwealth v. Bennett, 108 Mass. 27 c,:,;; Commonwealth v. Bottoms, 22 Ky. Law Rep. 410 378 Commonwealth v. Branamon, 8 B. Mon. (Ky.) 874 291 298 Commonwealth V. Barnes, 140 .Mass. -117 Ill Commonwealth v. Bearce, 150 Mass. 389 253' 322 Commonwealth v. Brelsford, 161 Mass. 01 <;74 Commonwealth v. Brem, 5 Pa. Dist. lief. 104 598 Commonwealth v. Brennan, 103 Mass. 70 192 Commonwealth v. Brewing Co. 140 Pa. St. 642 193 Commonwealth v. Briant, 142 Mass. 463 688 Commonwealth v. Brothers, 158 Mass. 200, 206 30, 110, 111, 628 Commonwealth v. Brown, 124 Mass. 318 683 Commonwealth v. Bryan, 9 Dana. 310 298 Commonwealth v. Bryne, 20 Gratt. (Va.) 165 198 Commonwealth v. Campbell (Ky. 1909), 117 S. W. 383 81, 85 Commonwealth v. Campbell, 128 Ky. 252 309 Commonwealth v. Canny, 158 Mass. 210 682 Commonwealth v. Carpenter, 100 Mass. 204 5 Commonwealth v. Casey, 134 Mass. 194 HO Commonwealth v. Certain Intoxicating Liquors, 4 Allen (Mass.) 593 525 Commonwealth v. Certain Intoxicating Liquors, 4 Allen (Mass.) 601 . . 517 Commonwealth v. Certain Intoxicating Liquors, 6 Allen (Mass.) 596. . . 527, 536 Commonwealth v. Certain Intoxicating Liquors, 6 Allen (Mass.) 599 527 Commonwealth v. Certain Intoxicating Liquors, 13 Allen (Mass.) 561. . . 524, 536 Commonwealth v. Certain Intoxicating Liquors, 97 Mass. 63 524 Commonwealth v. Certain Intoxicating Liquors, 97 Mass. 332 527 Commonwealth v. Certain Intoxicating Liquors, 97 Mass. 601 536 Commonwealth v. Certain Intoxicating Liquors, 103 Mass. 454 552 Commonwealth v. Certain Intoxicating Liquors, 105 Mass. 178 523 Commonwealth v. Certain Intoxicating Liquors, 107 Mass. 216 527 Commonwealth v. Certain Intoxicating Liquors, 107 Mass. 396 506 Commonwealth v. Certain Intoxicating Liquors, 109 Mass. 371 521 Commonwealth v. Certain Intoxicating Liquors, 1 1 ' > Mass. 182 527 Commonwealth v. Certain Intoxicating Liquors, 110 Mass. 416 504, 525 Commonwealth v. Certain Intoxicating Liquors, 1 13 Mass. 208 527, 529 Commonwealth v. Certain Intoxicating Liquors, 113 Mass. 455 527 Commonwealth v. Certain Intoxicating Liquors, 115 Mass. 142 546 Commonwealth v. Certain Intoxicating Liquors, 115 Mass. 153 77 ( 'ommonwealth v. Certain Intoxicating Liquors, 1 16 Mass. 21 526 Commonwealth v. Certain Intoxicating Liquors, 116 Mass. 27 527 Commonwealth v. Certain Intoxicating Liquors, 117 Mass. 427 527, 528 Commonwealth v. Certain Intoxicating Liquors, 122 Mass. 8 527 Commonwealth v. Certain Intoxicating Liquors, 122 Mass. 30 527, 529 Commonwealth v. Certain Intoxicating Liquors, 128 Mass. 7-2 519 Commonwealth v. Certain Intoxicating Liquors, 135 Mass. 519 519 < Jommonwealth v. Certain Intoxicating Liquors. 140 Mass. 287 539 Commonwealth v. Certain Intoxicating Liquors, 146 Mass. 509 509 s l TABLE OF CASES. SECTIONS Commonwealth v. Cbappel, 116 Mass. 7 28 Commonwealth v. Churchill, 136 Mass. 148 681 Commonwealth v. Collier, 134 Mass. 203 671 Commonwealth v. Costello, 133 Mass. 192 110 Commonwealth v. Coughlin, 182 Mass. 358 687 Commonwealth v. Crossley, hJ2 Mass. 515 651 Commonwealth v. Curran, 119 Mass. 206 665, 686 Commonwealth v. Dean, 110 Mass. 357 368 Commonwealth v. Dean, 14 Gray (Mass.) 99 30 Commonwealth v. Dolan, 121 Mass. 374 665, 686 Commonwealth v. Donahue, 149 Pa. St. 104 192 Commonwealth v. Ducey, 126 Mass. 269 171 Commonwealth v. Dunbar, 9 Gray (Mass.) 298 861 Commonwealth v. Dunn, 111 Mass. 426 666 Commonwealth v. Duprey, 180 Mass. 685 523 Commonwealth v. Elmore, 22 Ky. Law Rep. 510 248 Commonwealth v. Elliott, 4 Pa. Dist. R. 89 309 Commonwealth v. Elwell, 1 Gray (Mass.) 463 658 Commonwealth v. Estabrook, 10 Pick (Mass.) 293 293 Commonwealth v. Ewig, 145 Mass. 119 • 587 Commonwealth v. Ferden, 141 Mass. 28 662 Commonwealth v. Foster, 182 Mass. 27 , 672 Commonwealth v. Fowler, 98 Ky. 648 228 Commonwealth v. Fowler, 96 Ky. 166 125, 190 Commonwealth v. Fowler, 17 Ky. Law Rep. 1209 125 Commonwealth v. Frances, 152 Mass, 508 117 Commonwealth v. Fredericks, 119 Mass. 199 134 Commonwealth v. Frost, 155 Mass. 273 288 Commonwealth v. Finnegan, 124 Mass. 324 451 Commonwealth v. Gardner, 7 Gray (Mass.) 494 658 Commonwealth v. Giltinan, 64 Pa. St. 100 7 Commonwealth v. Gould, 158 Mass. 499 113, 124, 680 Commonwealth v. Graves, 18 B. Mon. (Ky.) 33 267 Commonwealth v. Grey, 2 Gray 501 646 Commonwealth v. Haderaft, 6 Bush. (Ky.) 91 652 Commonwealth v. Hall, 8 Gratt. 588 295 monwealth v. Hampton, 3 Gratt. 590 651 ( lommonwealth v. Harris, 7 Gratt. (Va.) 600 640 Commonwealth v. Hawkins, 98 Ky . 176 251 Commonwealth v. Hayes, 149 Mass. 32 210 monwealth v. Hayes, 145 Mass. 289 688 Commonwealth v. Head. 11 Gratt. 819 653 Commonwealth v. 1 [elback, 101 Ky. 166, 167 232, 648 Commonwealth v. Henry, 109 Mass. 366 682 Commonwealth v. Herrick, 6 Cush. (Mass.) 465, 408 3 Coi i ealth v. Hinds, 145 Mass. 182 530 I imonwealth v. Hok, 14 Bush. 668 375 I monwealth v. Holbrook, 10 Allen 200 84 ( i I Ky. 323 277, 293 Commonwealth v. Holstine, 132 Pa. St. 357 680 TABLE OF CASKS. X 1J SE4 ■ ■ Commonwealth v. Igo, 158 Mass. 199 665 Commonwealth v. Intoxicating Liquors, 105 .Mass. 595 550 Commonwealth v. Intoxicating Liquors, 113 Mass. 28 551 Commonwealth v. Intoxicating Liquors, 168 Mass. 43 : 'i- Commonwealth v. Intoxicating Liquors, 1 18 Mass. 18 541 Commonwealth v. Intoxicating Liquors, 150 .Mass. i<;4 Commouwealth v. Intoxicating Liquors, 128 Mass. 72 536 Commonwealth v. Intoxicating Liquors. 1 10 .Mass. 182 535, 537 Commonwealth v. Intoxicating Liquors, 172 Mass. 311 498, 508 Commonwealth v. Intoxicating Liquors, 113 Mass. 13 505, 521 Commonwealth v. Intoxicating Liquors, 113 Mass. 13 522, 52 I Commonwealth v. Intoxicating Liquors, 142 Mass. 470 51 s Commonwealth v. Intoxicating Liquors (Mass. S. C. 1909), 89 N. E. 918 535 Commonwealth v. James, 98 Ky.'30 295 Commonwealth v. Jarrell, 9 Ky. Law Rep. 572 874 Commonwealth v. Jones, 27 Ky. Law Rep. 16 388 Commonwealth v. Jones, 142 Mass. 573 258 Commonwealth v. Jordan, 18 Pick. (Mass.) 228 ~ Commonwealth v. Joslin, 158 Mass. 482 113. 134 Commonwealth v. Kane, 143 Mass. 92 Ill Commissioners v. Kane, 47 N. C. 293 377 Commonwealth v. Kiley, 150 Mass. 325 313 Commonwealth v. Keenan, 11 Allen (Mass.) 262 683 Commonwealth v. Keenan, 152 Mass. 9 688 Commonwealth v. Kelley, 177 Mass. 221 120 Commouwealth v. Kerrick, 6 Cush. (Mass.) 465 70 Commonwealth v. King, 86 Ky. 436 378, 386 Commonwealth v. Kohnle Brew. Co., 1 Pa. Super. Ct. 627 309 Commonwealth v. Leddy, 148 Mass. 130 688 Commonwealth v. Leddy, 105 Mass. 381 517, 537, Commonwealth v. Lemon, 25 Ky. Law Rep. 522 379 Commonwealth v. Livermore, 4 Gray < Mass.) 18 8 Commonwealth v. Locke, 114 Mass. 288 212 Commonwealth v. Luck, 2 B. Mon. ( Ky.) 296 218 Commonwealth v. Luddy, 148 Mass. 563 642 Commonwealth v. Lynch. 164 Mass. 541 682 Commonwealth v. Manning, 164 Mass. 547 658 Commonwealth v. McCann, 123 Ky. 247 7:!. 81, 118 Commonwealth v. McCormick, 150 Mass. 270 Commonwealth v. McDonald, 160 Mass. 528 194 Commonwealth v. McDonough, 150 Mass. 504 ill Commonwealth v. McGrath, 185 Mass. 1 :; " Commonwealth v. McGroarty, 1 18 Pa. St. 606 175 Commonwealth v. McGuirk, 78 Pa. St. 298 Commonwealth v. McKenna, 158 Mass. 007 682 Commonwealth v. McKiernan, 138 Mass. 114 659 Commonwealth v. McNeese, 156 Mass. 381 Commonwealth v. Mandeviller, 142 Mass. 469 288 Commonwealth v. Martin, 162 -' 683 Commouwealth v. Mania. 170 Pa. St. lis 181, 182 x jij TABLE OF CASES. SECTIONS Commonwealth v. Matthews, 129 Mass. 485 206 Commonwealth v. Moran, 148 Mass. 453 219 Commonwealth v. Moore, 145 Mass. 244 Ill Commonwealth v. Morgan, 149 Mass. 314, 316 17, 33 Commonwealth v. Murium, 136 Mass. 433 231 Commonwealth v. Murphy, 95 Ky. 38 117 C< anmonwealth v. Murphy, 155 Mass. 284 644 Commonwealth v. Xaylor, 34 Pa. St. 86, 88 119 Commonwealth v. Nelson, 22 Ky. Law Rep. 410 378 Commonwealth v. Newton, 123 Mass. 420 539 ( mmonwealtn v. Neylon, 159 Mass. 541 671 Commonwealth v. Overly, 107 Ky. 169 376 Commonwealth v. Patch, 97 Mass. 221 142 Commonwealth v. Pease, 110 Mass. 412 38 Commonwealth v. Peckham, 2 Gray (Mass.) 514 31 Commonwealth v. Peoples Express Co. (Mass.), 88 N. E. 420 211 Commonwealth v. Pillsbury, 12 Gray (Mass.) 127 96 Commonwealth v. Pomphret, 137 Mass. 564 587 Commonwealth v. Powell, 22 Ky. Law Rep. 1932 202 Commonwealth v. Ramsdell, 130 Mass. 68 38, 40 Commonwealth v. Regan, 182 Mass. 22, 685 686 Commonwealth v. Regan, 9 Gray (Mass.) 137 686 Commonwealth v. Reed, 162 Mass. 215 551 Commonwealth v. Reyburg, 122 Pa. St. 299 28, 674 Commonwealth v. Riley, 14 Bush. 44 637 Commonwealth v. Rourke, 141 Mass. 321 110, 670 Commonwealth v. Ryan, 136 Mass. 436 662 Commonwealth v. Sawtelle, 150 Mass. 320 Ill Commonwealth v. Sbeckls, 78 Va. 36 84 monwealth v. Sellers, 130 Pa. St. 32 192, 661 Commonwealth v. Shaw, 116 Mass. 8 682 : monwealth v. Shea, 160 Mass. 6 682 Commonwealth v. Shea, 14 Gray (Mass.) 86 5 Commonwealth v. Simmons, 4 Pa. Dist. R. 35 309 Commonwealth v. Slaughter, 12 Ky. Law Rep. 893 654 Commonwealth v. Sloan, 4 Cush. (Mass.) 640 Commonwealth v. Smith, 2 Pa. Dist. Rep. 474 598 Commonwealth v. Smith, 102 Mass. 144 587 Commonwealth v. Smith, 1 Gratt. 533 643 Commonwealth v. Smoulter, 126 Pa. St. 137 , 175 Commonwealth v. Snow, 133 Mass. 575 25 Commonwealth v. Stevens, 155 Mass. 291 687 Commonwealth v. Stringer, 78 Ky. 56 363 ealth v. Sullivan, 156 Mass. 487 672 Commonwealth v. Swertzer, 129 Pa. St. 644 280 Commonwealth v. Tabor, 138 Mass. 496 112, 113 Commonweall h v. Thompson, 2 Gray (Mass.) 83 363 Commonwealth v. Thorneley, 2 Allen 445 84 Commonwealth v. Tierney, 148 Pa. St. 552 ~ 598 Commonwealth v. Timothy, 8 Gray (Mass.) 480 9, 31 TABLE OF I ASES. x liii Commonwealth v. Traylor, 22 Ky. Law Rep. 97 656 ( lommonwealth v. Tufkin, KIT Mass. 553 07 ; Commonwealth v. Turner, 1 Cush. 498 145 ( lommonwealth v. Unrig, 146 Mass. 132 0*3 Commonwealth v. Voorhies, 12 B. Mon. (Ky.) 3G1 136, 212 Commonwealth v. Watson, 2 Pa. Die. R. 526 121 Commonwealth v. Welch, 111 .Mass. 856 ^ S< J Commonwealth v. "Weller, 14 Bush. (Ky.) 218 886, 871 Commonwealth v. Weller, 81£ Pa. St. 127 376 Commonwealth v. Weisenburg, 126 Ky. 8 413 Commonwealth v. Weizel, 24 Pa. Super. Ct. 407 686 Commonwealth v. Wheeler, 79 Ky. 284 233 Commonwealth v. White 18 B. Thou. 492 637 Commonwealth v. Wood, 116 Ky. 748 638 Commonwealth v. Wood, 4 Gray (Mass) 658 Commonwealth v. Worcester, 141 Mass. 58 Ill Commonwealth Court v. Beall, 98 Tex. 104 372 Comstock v. Hopkins, 61 Hun (N. Y.) 189 440 Cornelius v. Hultman, 44 Neb. 441 455 Conley v. Zerber, 74 Iowa 699 624 Connecticut Breweries Co. v. Murphy, 81 Conn. 145 231, 235, 296 Confrey v. Stark, 73 111. 187 473 Conrad v. State, 70 Miss. 733 469 Conservative Realty Co. v. St. Louis Brew. Assn., 133 Mo. App. 261 235 Conwell v. Overmeya, 145 Iud. 698 263 Couwell v. Sears, 65 Ohio St. 49 174 Cook Brewing Co. v. Gailer, 168 Fed. 942, 948 187, 303 Cooke v. Loper, 151 Ala. 546 223 Cooke v. Mercer Pleas, 51 N. J. L. 85 204 Cooper v. City of Hot Springs (Ark. 1908) 111 S. W. 997 178 Cooper v. Hunt, 103 Mo. App. 9 243, 267, 2G8 Copeland v. Town of Sheridan, 152 Iud. 107 204, 317 Corbett v. "Washington Territory, l Wash. Ter. 431 151 Corbett v. Duncan, 63 Miss. 85 242 Corporation of Aberdeen v. Sauuderson, 8 Sm. & M. (Miss.) 663 225 Corporation of Minden, 36 LaAnn. 912 164 Cowert Ex. parte, 92 Ala. 94 138 Cost v. State, 96 Ala. 60 646, 662 Costello v. State, 130 Ala. 143 674 Cotton v. State, 62 Ark. 583 104 Couchman v. Prather, 162 [nd. 250 495 Coughtry v. Hampt, 47 Tex. Civ. App. 452 491 Coulson v. Harris, 43 Miss. 728 186 Coulterville v. Gillen, 72 111. 599 204 Councel v. Van. Roven, 2 Mc. C. L. (S. C.) 465 112 County of Allegany v. Town of Wellsvffle, 90 Hun (N. Y.) 23 182 County of Amador v. Kennedy, 70 Cal. 458 215 County of Appling v. Mc Williams, 69 Ga. 840 197 County Commissioners v. Robinson. 16 Minn. 381 268, 280 County Commissoners v. State, 24 Fla. 55 403 xliv TABLE OF CASES. SECTIONS ( lowles -Matter of, 34 Misc. R. (K Y.) 447 255 Cox v. Common Council of Jackson, 152 Mich. 630 273, 313 Burnhan, 100 Iowa. 43 64, 278 Cox v. Xewkirk. 73 Iowa. 42 435, 456 Cox v. Thompson, 96 Tex. 468 352 Cox Ex parte, 28 Tex. App. 537 375 Crabb v. State. 88 Ga. 584 61, 100, 118, 510 Crabtree v. Reed, 50 Rl. 206 459 Craddock v. State, 18 Tex. App. 367 135 Craig v. Burnett, 32 Ala. 728 216 Craig v. Werthmueller, 78 Iowa 598 613, 616 Craig, City of v. Smith, 31 Mo. App. 286 197 Cramer v. Danielson, 99 Mich. 531 420, 451 Cranor v. Albany, 43 Oreg. 144 164, 647 Cravens v. Adair Counry Court, 17 Ky. Law. Rep. 71 244 Crawford County v. Laub. 110 Iowa 355 180 Crawley v. Commonwealth, 123 Pa. St. 275 344 Creel v. Cordon, 44 Tex. Civ. App. 367 447 Crigler v. Shepler (Kan. 1909), 101 Pac. 619 59 Croker v. Camden Board of Excise, 73 N. J. L. 460 159, 164, 167, 171 Cronin v. Adams, 192 U. S. 108 114, 115 Crosby v. Snow, 16 Me. 121 359 Crow Dog Ex parte, 109 U. S. 556 43 Crowin v. Stoddard, 97 N. Y. 271 281 Crowley v. Christensen, 137 U. S. 86, 91 77, 80, 190 Croxton v. Truesdel, 75 S. C. 418 61, 91, 379 Cruse v. Aden, 127 111. 231 421, 422 Cunningham v. Berry, 17 Oreg. 622 637 Cunninghan v. State, 5 W. Va. 508 646 Crutz v. State, 4 Ind. 385 « 339 Cuirczak v. Keron (N. J. L. 1908), 70 Atl. 366 316 Cullen v. State, 42 Conn. 55 193 Cullinan, Matter of, 68 App. Div. (N. Y.) 119 314 Cullman v. Buskard, 93 App. Div. (K Y.) 31 356, 363 Cullinan v. Criterion Club, 39 Misc. R. (N. Y.) 270 507 Cullinan v. Pidelty & Casualty Co., 84 App. Div. (N. Y.) 292 354 Cullinan v. Fidelity & Casualty Co., 41 Misc. R. (N. Y.) 119 345 Cullinan v. O'Connor, 100 App. Div. (N. Y.) 142 354 Cullinan v. Trolley Club, 65 A pp. Div. (K Y.) 202 595 Cullinan, Matter 76 App. Div. (N. T.) 362 317, 318 Cullinan, Matter of, 82 App. Div. (N. Y.)445 188 Cullinan, Matter of , 87 App. Div. (K Y.) 47 336 Cullinan, Matter of, 88 App. Div. (N. Y.) 6 309 Cullinan, Matter of, 93 App. Div. (N. Y.) 540. . . 323 Cullinan, Matter of , 94 App. Div. (N. Y.) 445 188, 320 Cullinan, Matter of , 97 App. Div. (N. Y.) 122 323 Cullinan, Matter of, 39 Misc. R. (X. Y.) 354 321 ( iullinan, Matter of, 39 Misc R. (N. Y.) 355 325 Cullinan. Matter of, 39 Misc. R. (N. Y.) 558 321 Cullinan, Matter of, 39 Misc. R. (N. Y.) 641 337 • TABLE OF CASE . xlv Ml ! Cullinan, Matter of. 39 Misc. R. (X. Y. ) 846 246, 318 Cullinan, Matter of, 40 Misc. R. (N. Y.)428 317, 333 Cullinan, Matterof,41 -Misc. II. (N. Y.) 3 119 Cunningham v. Porchet, 2:} Tex. Civ. App. 80 107 Oman v. Owens, 15 VV. Ya. 208 426 Curran v. Percival, 21 Neb. 4:54 460 Currier v. McKee, 99 Me. 364 432,433 Curry v. State, 28 Tex. App. 475 , 395 Curry v. State, 28 Tex. App. 447 230 Curry v. Township of Tawas, 81 Mich. 355 199 Curtis v. Leavitt, 15 N. Y. 229 426 Custin v. City of Viroqua, 67 Wis. 314 199 Cuzner v. California Club (Cal. S. C. 1909), 100 Pac. 868 575 D Dakota Burke v. Collins, 18 S. D. 190 190 Dallas Brewery v. Holmes Bros. (Tex. Civ. 1908), 112 S. W. 122.21, 34, 26, 31, 376 D'Amato's Appeal, 80 Conn. 357 342, 293 Daniel v. State, 149 Ala. 44 688 Danley v. Hibbard, 222 111. 88 448, 452, 472 Darling v. Boeseh, 67 Iowa 702 265 Darling v. City of St. Paul, 19 Minn. 387 149 I >arst v. People, 51 111. 286 547 Dasli v. Van Kluck, 7 Johns (N. Y.) 47 426 Davenport v. Ryan, 81 111. 218 481 Davis v. Auld, 96 Me. 559 610, 612, 614 Davis v. Hoard of Supervisors, 7 Cal. App. 571 260 Davis v. Borland, (Neb. 1909), 119 N. AY. 454 462 Davis v. Commonwealth, 75 Ya. U44 303 Davis v. Dashiel, 61 N. C. 114 179 Davis v. Pasig, 128 Intl. 271 166 1 >a vis v. Henderson, 31 Ky. Law. Rep. 1252 Davi; v. Justice, 31 Ohio St. 359 187 Davis v. McKnight, 146 Pa. St. 610 433, 474 Davis v. Standish, 26 Hun (X. Y.) 608, 615 435, 4 43, 462 Davis v. s:atr, 4 Stew & P. (Ala.) 83 232 Davis v. State, 50 Ark. 17 38 Davis v. Stat-. 2 Tex. App. 425 193 Dawson v. State, 25 Tex. App. 670 396 Day v. Frank, 127 Mass. 497 556 Dearen v. Taylor County Court, 98 Ky. 135 De Blancv. Mayor, & Board of Trustee, 106 La. 680 608, 613 Decberd v. Drewry,64 Ark. 599 Decie v. Brown, 167 Mass. 290 319 Decker v. Board of Excise, 57 X. J. L. 603 305 Decker v. McGowan. 59 Ga. 805 232 Decker v. Sargeant, 125 End. 404 159, 164 Decker v. State, 39 Tex. Cr. 20 3 x ] v j TABLE OF CASKS. SECTIONS De Grazier v.' Stephens (Tex. S. C. 1907), 105 S. W. 992. . . , 81, 201 Deignan v. License Commissioners, 16 R. I. 727 322 Deitz v. City of Cential, 1 Colo. 323 172 Delaney v. State. 51 N. .1. L. 37 680 Delamaster v. South Dakota, 205 XT. S. 93, ( J'J 54, 55, 59, 81 Delfer v. Hanson, 2 Wash. 194 473, 492 Delphi v. Hamling (Ind. S. C. 1909), 89 N. E. 308 568 Denby v. Fie, 106 Iowa 229 631 Deuckson v. Coules (Ky. 1909), 117 S. W. 955 413 Denmead v. Parker (Iowa S. C. 1910), 124 N. W. 780 630, 631 Dennely v. Chicago, 120 111. 627 138, 204, 215 Dernsell v. State, 2 Ind. 658 68 Dennison v. Van Worrner, 107 Mich. 461 431 Denton v. Vann, 8 Cal. App. 677. . 139, 204 Denvie v. State, 4 Iowa 443 649 De Puy v. Cook, 90 Hun (N. Y.) 43 469, 472 Deutschman v. Town of Clarkstown, 40 Ind. 449 212 Deveny v. State, 47 Ind. 208 673 Devin v. Belt, 70 Md. 352 271 Devine v. Com., 180 Va. 860 685 Dewar v. People, 40 Mich. 401 146 Dexter v. Sprague, 22 R. T. 324 261 Dexter v. Town Council, 17 R. I. 222 253 Deyo v. Rood, 3 Hill (N. Y.) 527 564 Dickinson v. Eichorn, 78 Iowa 710 619 Dillon v. Linder, 36 Wis. 344 426 Disbrow v. Saunders, 1 Den. (K Y.) 149 297 Dispensary Commissioners of Lee County v. Hooper, 128 Ga. 99 95, 608 Dispensary Commissioners v. Thornton, 106 Ga. 106 228 District of Columbia v. Renter, 15 App. D. C. 237 118 Divine v. Lakeview, 121 Mich. 433 343 Dixon v. State, 67 Ark. 495 677 Dixon v. State, 89 Ga. 785 685 Dixon v. State, 21 Tex. App. 517 643 Dobbins v. Gaines, 52 S. C. 176 507 Dobbins v. United States, 96 U. S. 395 441 Dolke v. State, 99 Ind. 229 684 Donald v.JScott, 67 Fed. 854, 857 92 Donmoyer's Licenses, 9 Pa. Co. Ct. R. 303 247 Donovan v. Fairfield County Commissioners, 60 Conn. 339 401 Doran v. Phillips, 4? Mich. 228 196, 197 Dorman v. Mate, 34 Ala. 216 643 Doty v. Postal, 87 Mich. 143 427 Dougherty v. Commonwealth, 14 B. Mon. 239 270 Douglas v. State, 21 Ind. App. 302 10, 22 Douthit v. State, 98 Tex. 344 352, 361, 363 Douthit v. State, 36 Tex. Civ. App. 396 178 Dover v. Trombly, 42 N. II. 59 96 Dowdell v. State, 58 Ind. 333. 644 Dowiat v. People, 92 111. App. 433 340, 345 TABLE OF CASES. xlvii SECTIONS Downing v. Porter, 8 Gray (Mass.) 539 519, 524, 529 Doyles License, 6 Kulp 356 300 Drady v. District Court, 126 Iowa 345 632 Drake v. Drewry, 112 Ga. 308 400 Drake v. Kiugsbaker, 72 Iowa 441 622 Drechsel v. State, 35 Tex. Cr. 577, 580 407, 408, 417, 648 Drew County v. Bennett, 43 Ark. 364, 365 83, 134, 193 Driggs v. State, 52 Ohio St. 37 103 Druggist Cases, 85 Teun. 449 173, 202, 562 Drummond v. Richland City Drug Co., 133 Iowa 266 629 Dry sdale v. Pradat, 45 Miss. 445 218 Dubois v. Miller, 5 Hun (N. Y.) 332 461 Dubois v. Miller, 5 Hun 335 487 Dudley v. Parker, 132 N. Y. 386 343, 474 Dudley v. Sailbbine, 49 Iowa 650 556 Dudley v. State, 40 Ind. A. C. 74 . . 429 Dufford v. Nolan, 46 N. J. L. 87 260 Duluth Brewing & M. Co. v. City of Superior, 123 Fed. 353 211 Dunlup v. Wagner, 85 Ind. 529 470 Duulavey v. Watson, 38 Iowa 398 473 Dunn v. State, 82 Ga. 27 510 Dunn v. Stegeman (Cal. C. A. 1909), 101 Pac. 25 134 Dupree v. State (Tex. S. C. 1909), 119 S. W. 301 503, 519, 524. 544 Durach's Appeal, 62 Pa. St. 491 173 Durien v. Pontious, 34 Kan. 353 492 Du Vail v. City Council of Augusta, 115 Ga. 813 22 Dwinnels v. Parsons, 98 Mass. 470 98 Dye In re, 79 Neb. 149 250 E Eagan v. State, 37 Ark. 219 34, 685 Eagan v. State, 53 Ind. 162 34 Edgar v. State, (Tex. Civ. App. 1907), 102 S. W. 439 125 Earp v. Lilly. 217 111. 582 439, 435 East Saginaw v. County Treasurer, 44 Mich. 273 181 East St. Louis, City of, v. Wehrung, 46 111. 392 215 East St. Louis v. Wehrung, 50 111. 28, 31 149, 323 Eastwood v. Klamm (Neb. 1909), 120 N. W. 149 481, 482 Eaves v. State, 113 Ga. 749 5, 12, 20, 641, 640, 647 Eddy v. Courtright, 91 Mich. 264 457. 472 Edgar v. State. 46 Tex. Civ. App. 171 31; Edinburg v. Hackney, 54 Ind. 83 1" Edlernan v. United States, 86 Fed. 450 43 Edwards v. Brown, 77 Mo. 377 45 ' Edwards v. State, 22 Ark. 253 -89 Egeleston, Matter of, 51 App. Div. (N. Y.) 38 391 Ehlertv. State, 93 Ind. 70 ,;vl Ehrich v. White. 74 111. 481 684 x]v jj i TABLE OF CASES. SECTIONS Eilenbecker v. District Court of Plymouth County, 134 U. S. 31 612 Eilke v. McGrath, 100 Ky. 537 445 Elba v. Rhodes. 142 Ala. 689 90 Elliott v. Barry, 34 Hun (N. Y.) 129 485 Elliott ex parte, 49 Tex. Cr. R. 108 , 373 Elliott ex parte. 44 Tex. Cr. 575 378, 379 Ellis v. People, 38 Colo. 516 114 Elsline v. Schuyler, 15 Neb. 561 435, 482 Eisner v. State, 30 Tex. 524 662 Elwood v. Price, 75 Iowa 228 628 Emerich v. Indianapolis, 118 Ind. 279 204 Emery v. Lowell, 127 Mass. 138 199 Emory v. Addis, 71 111. 273 435, 440 Emporia v. Voluier, 12 Kan. 622 209 Endleman v. United States, 86 Fed. 456 84, 666 Engelthaler v. Linn County, 104 Iowa 293 297 England v. Cox, 89 111. App. 551 465 England v. Johnson, 86 Iowa 751 034 Engle v. State, 97 Ind. 122 445 Engleken v. Hilger, 43 Iowa, 563 485 Engleken v. Webber, 47 Iowa 558 439, 481 English v. Beard, 51 Ind. 489 420, 456, 497 Ennis v. Shirley, 47 Iowa 552 439 Ensley v. State (Ind. S. C. 1909), 88 N. E. 62 65, 139, 142, 155, 211 Enterprise Brewing Co. v. Grime, 173 Mass. 252 236 Eslow v. City of Albion, 153 Mich. 720 199 Eureka, City of v. Davis, 21 Kan. 578 145, 242 Eureka Vinegar Co. v. Gazette Printing Co., 35 Fed. 570, 571 17, 28, 29 Evans v. Commonwealth, 95 Ky. 231 251, 284 Evans v. Redwood Falls, 103 Min, 314. 297 Evans v. State (Tex. Cr. 1909), 117 S. W. 167 412, 413 Eve v. Simon, 79 Ga. 120 271 Ezzell v. State, 29 Tex. App. 521 411 F Fagan v. State, 47 N. J. L. 175 121 Fahey v. State, 27 Tex. App. 146 173 Faivre v. Manderscheid,;il7 Iowa 724 439, 481 Farley v. Hollenfeltz, 79 Iowa 126 619 Farmville v. Walker, 101 Va. 323 81, 91 Farr v. Anderson, 135 Mich. 485 343 Farrell v. Drees, 41 Wis. 186 426 Fay v. Barber, 72 Yt. 55 538 Fayette, Matter of, 45 Misc. R. (N. Y.) 141 391 Fears v. State, 102 Ga. 274 372 Fears v. State, 125 Ga. 740 33, 34 Featherstone v. Lambertville, 50 N. J. L. 507 145, 149 Fecheimier v. Louisville, 84 Ky. 306 200 TABLE OF CAS x \[ x Peek v. Township Board, 82 Mich. 398 886, 871 Pehn v. Stair. 8 [nd. App. 568 Feibelman v. State, 130 Ala. 122, 125 88 Feigenspan v. Mulligan, 63 N. J. Eq. 170 : 298 Feil. v. Kitchen Bros. Hotel Co. 57 Neb. 22 252 Felchlim Ex parte, 96 Cal. 360 314 Feldman v. Morrison, 1 111. App. 460. 5, 28 Fell v. State, 42 Md. 71 83, 186, 303, 386 Fenton v. State, 100 Ind. 598 20 Fentz v. Meadows, 72 111. 540 421, 437, 465 Fei guson v. Brown, 75 Miss. 214 • 248, 276 Ferguson v. Josey, 70 Ark. 94 498, 540 Ferguson v. Monroe County, 71 Miss. 524 383 Fenner v. State, 3 R. I. 107 522 Fidelity & Deposit Co. v. Jennes, 138 Iowa, 725 362 Fielding v. La Grange, 104 Iowa 530 556 Fields Ex. parte, 39 Tex. Cr. 50 378 Fink v. Garman, 40 Pa. St. 95 423 Finn v. State, 38 Tex. Cr. 75 601 Finnegan v, Lucy, 157 Mass. 439 445 Fischer v. Board of Suprs. (Mich. 1909), 120 X. W. 13 383 Fisher v. Cass County District Court, 75 Iowa 232 632 Fisher In re License, 11 Pa. Dist. Rep. 526 247 Fisher v. McGirr, 1 Gray (Mass.) 1 498, 502 Fishery. Met. El. R. Co., 34 Hun (X. Y.) 433 443 Fitzgerald v. Donoher, 48 Neb. 852 ... 449 Fitzgerald v. Hurley, 180 Mass. 151 225 Fitzgerald v. Witchard, 130 Ga. 552 330 Fitzpatrick v. State, 37 Ark. 373 677 Flaherty v. Longley, 62 Me. 420 527 Flanagan v. Plainsfield, 44 X. J. L. 118 205, 643 Flancher v. Camden, 56 X. J. L. 244 281 Fleming v. Xew Brunswick, 47 X. J. L. 231 18, 651 Fletcher v. Crist, 139 Ind. 121 286 Fletcher v. Forler, 83 Mich. 52 454, 457 Flint v. Gauer, 66 Iowa 696 439 Flood v. State, 103 Md. 692 72 Flora v. American Express Co., 92 Miss. 66 504 Florence v. Brown, 49 S. C. 332 138 Flournoy v. Grady, 25 La Ann. 591 Flower v. State, 39 Ark. 209 686 Flow.r v. Witkovsky, 69 Mich. 371 423, 451, 457 Flynn v. Fogarty, 106 111. 263 47:5, 479, 4^7 Flynn v. Taylor." 145 Ind. 538 260, 264 Foley v. Roth, 20 Ohio S. A; ('. P.. Dec 157 180 Foltyn In. Re. (Xeb. 1908), 118 X. W. 119 275, 270 Ford v. Cheever, 105 Mich. 679 5, -UV.\, 465 Ford v. Denver, City of, 10 Colo. App. 500 572 Forat's Licenses, 208 Pa. St. 578 248 Fortier v. Moore, 67 X. H. 460 494 1 TABLE OF CASES. SECTIONS Fortner v. Duncan, 91 Ky. 171 136, 153 Forty three gallons of Cognac brandy, 11 Fed. 47 43 Forwood v. State, 49 Md. 531 .. • 302 Foster v. Board of Police Commissioners, 102 Cal. 483 77, 170, 200, 204, 219 Foster v. Brown, 55 Iowa 686 153 Foster v. Frost, 25 Neb. 731 286 Foster v. Kansas, 112 U. S. 201, 206 83 Foster v. Speed, 120 Tenn. 470 174 Foster v. State, 36 Ark. 258 38 Fountain v. Draper, 49 Ind. 441 439, 456 Fowler v. State, 85 Ind. 538 677 Fox v. State (Tex. Cr. 1908), 109 S. W. 370 378 Fox v. Wunderlich, 64 Iowa 187 434, 465, 481 Foxcroft v. Crooker, 40 Me. 308 98 Fox Lake, Town of, v. Village of Fox Lake, 62 Wis. 486 181 Frame v. State, 53 Ohio St. 311 561 France, Matter of, 36 Misc. R. (K Y.) 693 391 Frank v. Hoey, 128 Mass. 203 511 Frankfort City of v. Aughe, 114 Ind. 77 218 Franklin v. Schemerhorn v. Hun (N. Y.) 112 420, 443, 467 Franklin v. State (Ala. 1908), 48 So. 348 288 Franklin v. Westfall, 27 Kan. 614 225 Franklin County Liquor Licenses, 26 Pa. Co. Ct. R. 152 294 Freeman v. Commonwealth, 8 Bush. (Ky.) 139 232 Freeman v. Lazarus, 61 Ark. 247 398, 412 Freese v. Tripp, 70 111. 96 465 Freiberg v. State, 94 Ala. 91 33, 652 Fress v. State, 23 Fla. 267 33 Fricker v. State, 39 Tex. Cr. 254 387, 393 Fries & Co. v. Porch, 49 Iowa 351 544 Friesner v. Common Council, of City Charlotte, 91 Mich. 509 417, 419 Fritz v. State, 1 Baxt. (Tenn.) 15 7 Fruide v. State, 66 Neb. 244 683 Fry v. Kaessner, 48 Neb. 133 196 Fuller v. McDonnell, 75 Iowa 220 624 Fullwood v. State, 67 Misc. 554 394 Funk v. Isreal, 5 Iowa 438 54 4 Furman v. Knapp, 19 Johns (N. Y.) 248 232 G Gabel v. Houston, 29 Tex. 335 164 Gaertner v. Fond du Lac, 34 Wis. 497 322, 329 Gage v. Harvey, 66 Ark. 68 423, 496 Gage v. State (Tex. Cr. App. 1903), 73 S. W. 459 654 Gaiocchpio v. State, 9 Tex. App. 387 668 Galindo v. Walter (Cal. C. A.), 96 Pac. 505 209, 223 Galloway v. State, 60 Ark. 302 ra Gambia v. Endrich Bros., 143 Ala. 506 206 Gardner v. Day, 95 Me. 558 421, 487 TABLE OF CASES. li SECTIONS Gardner v. People, 20 111. 430 151, 208 Garham v. State, 121 Ga. 590 685 Garey's License, 11 Pa. Co. Ct. R. 468 310 Gaillard v. Cantini, 76 Fed. 699 540 Gansley v. Perkins, 30 Mich. 492 465, 48, 490 Garner v. State, 8 Blackf. 568 375 Garonzik v. State, 50 Tex. Cr. 533 101, 156 Garrett v. Bishop, 113 Iowa 23 106, 107 Garrett v. Mayor, 47 La Ann. 618 386 Garrett v. Polk County, 78 Iowa 108 519 Garrigan v. Kennedy, 19 S. D. 11 420, 480, 487 Garrigan v . Thompson, 17 S. D. 132 487, 490 Garrison v. Steele, 46 Mich. 98 342, 346 Garsed v. Greenslow, 126 N. C. 159 91, 93 Gaskins v. State, 127 Ga. 51 685 Gaston v. O'Neal, 145 Ala. 484 226 Gault v. State, 34 Ga. 533 40 Gayle v. Owen County Court, 83 Ky. 61 385 Gemas's Appeal, 169 Pa. St. 43 268 Genge v. Goley, 128 Mass. 289 436 Genovas License v. Pa. Dist. Rep. 722 324 George v. Winchester, 26 Ky. Law Rep. 170 271 Germantown Brewing Co. v. Booth, 162 Pa. St. 100 300 Getchell v. Page, 103 Me. 387 516 Getman, Matter of, 28 Misc. R. (N. Y.) 451 416 Gibboney's Petition, 185 Pa. St. 572 261 Gibson v. State, 34 Tex. Cr. 218 202, 375 Giddings v. Wells, 99 Mich. 221 403 Gieb v. State, 31 Tex. Cr. 514 660 Gilday v. Warren, 69 Conn. 237 301 Gilham v. Wells, 64 Ga. 192 168 Gill v. Parker, 31 Vt. 610 498 Gilmore v. Matthews, 67 Me. 517 465 Gilmore v. State, 125 Ala. 59 654 Ging v. Sherry, 32 App. Div. (N. Y.) 354 334 Ginnochio Ex parte, 30 Tex. App. 584 135 Giozza v. Tiernan, 148 U. S. 657 44, 45, 4? ,8 2 Glass v. Commonwealth, 33 Gratt. 827 642 Glenn v. Lynn, 89 Ala. 608 249. 272 Glentz v. State. 38 Wis. 54!) 149 Gloversdale v. Howell, 70 N. Y. 287 386 Godfreidson v. People, 8S 111. 284 3 Goetz v. Stutsman, 73 Iowa 691 624 Gofuth v. State, 60 Miss. 74 -231 Goldsticker v. Ford, 62 Tex. 385 113 Good v. Towns, 56 Vt. 410 474 Goods v. State, 3 G. Greene 566 689 Goodenough v. McGrew, 44 Iowa 679 465, 468. 481 Goodwin v. Smith, 72 Ind. 113 241 Goodwin v. Young, 34 Hun (N. Y.) 253 424 lH TABLE OF CASES. Goodwine v. Flint, 28 Ind. App. 36 252 Gordon v. State, 46 Ohio St. 607, 638 83, 368, 370 Gorman v. State, 52 Tex. Cr. 327 411 Gorman v. Williams, 117 Iowa 560 362, 367 Goulding v. Phillips, 124 Iowa 496 493 Gorev v. Kelly, 64 Neb. 605 : 435, 478 Graff v. Evans, 46 Law T. R. N. S. 347 606 Graham v. Cooley, 73 Ohio St. 127 445 Gran v. Houston, 45 Neb. 813 435, 436, 478, 485, 492 Granger v. Hayden, 17 R. I. 179 350, 364 Grantham v. State, 89 Ga. 121 646 Grant's License, 2 Pa. Co. Ct. R. 87 248 Gray v. Commonwealth, 9 Dana. (Ky.) 300 293 Gray v. Connecticut, 159 U. S. 74 45 Gray v. Davis, 27 Conn. 447 519, 527, 528 Gray v. Eugene (Oreg. 1909), 100 Pac. 306 418 Gray v. Kimball, 42 Me. 299, 307 498, 503, 538 Graziano v. City New Orleans, 121 La. 440 312 Great Fall Bank v. Farmington, 41 N. H. 32 97 Green v. Smith, 111 Iowa 183 254, 380 Green v. Southard, 94 Tex. 470 231 Greencastle v. Thompson, 168 Ind. 493 77, 134, 156 Greene County v Wilhite, 29 Mo. App. 459 346, 348, 356, 367 Greener v. Williams (Ind. A. C. 1909), 89 N. E. 377 486 Greenleaf v. Gallagher, 93 Me. 549 511 Greenlee v. Schoenheit, 23 Neb. 669 484 Greenough v. Board of Police Commissioner (R. I. 1909), 71 Atl. 806 194 Greentree v. Wallace, 77 Kan. 149 544, 545 Greener v. Melhans (Ind. A. C. 1909), 89 N. E. 377 454 Greener v. Melhans (Ind. A. C. 1909), 89 N. E. 377 454 Griffin v. Commonwealth, 7 Ky. Law Rep. 300 100 Griffin v. Tucker (Tex. S. C. 1909), 118 S. W. 635 378, 402 Griffin v. Tucker (Tex. Civ. App. 1909), 119 S. W. 338 372, 402 Grimm's Estate, 181 Pa. St. 233 292, 298 Groescb. v. State, 42 Ind. 547 194, 248 Groscop v. Rainier, 111 Ind. 361 261, 264 Grosse Point v. Treasurer, 85 Mich. 44 182 Gross's License, 161 Pa. St. 344 276 Grumbach v. Lelande (Cal. S. C. 1908), 98 Pac. 1058 100, 156, 157, 270 Grummon v. Holmes, 76 Ind. 585 264 Guedert v. Emmet County, 116 Iowa 40 180, 199 Guenther v. Day, 6 Gray (Mass.) 490 520 isey v. McHaley (Oreg. 1909), 98 Pac. 158 391 kson v. Gjorud, 82 Mich. 503 436 Guptill v. Richardson, 62 Me. 257 520, 538, 540 Guerrero In re, 69 Cal. 88 223 Gulf Brewing Co's License, 11 Pa. Co. Ct. R. 346 235 Gullickson v. Gjorud, 89 Mich. 8 341 GundUng v. Chicago, 177 U. S. 183 82 Gunnarssohn v. City of Sterling, 92 111, 569 134, 138, 169, 685 TABLE OF CASES. ]jji 3E( Mo. - Gustafson v. Wind, 62 [owa 2si 4-1 1 Guy v. Commissions, L22 N. C. 471 (52, 81, -■:, 87, 98 Guy v. State, 96 Md. 692 688 H Haas v. Peruick, 31 Ohio C. C. 591 Backettv. Smelsley, 77 111. 109 435,443,465, 473,475, 481,485, 486 Baddox v. County of Clark, 79 Va. 677 391 Baehnle Brew. Co. V. Board of Supervisors (Mich. 1909), 121 X. W. 209 403 Ilafter v. State, 51 Ala. 37 653, 65 1 Hagerty v. Tuxbury, 181 Mass. 126 295 1 [aggart v. Stehlin, 137 Ind. 43 190, 618 Baight, Matter of, 33 Misc. R. (N. Y.) 544 246 Haines v. Hanrahan, 105 Mass. 480 18 Haines v. State, 7 Tex. App. 1 117 Hainline v. Commonwealth, 13 Bush. (Ky.) 350 288 Halan v. Richmond, 108 Iowa 161 . . 632 Balberg Mercantile Co. v. State ( Miss. 1909), 48 So. 622 551 Balbran, Matter of, 30 Misc. R. (X. Y.) 515 319 Balfmaa v. Spreen, 75 Iowa 309 626 Ball v. Barnes, 82 111. 228 459, 460 Ball v. Caffln, 108 Iowa 466 627 Hall v. Dunn (Oreg. 1908), 97 Pac. 811 71, 123, 204 Hall v. Germain, 131 N. Y. 536 442 Hall v. McKechine, 22 Bush. (X. Y.) 244 565, 567 Hall v. Salomon, 61 Conn. 476 623 Ball Ex parte (Ala. 1908), 47 So. 199 90 Ilallbeck v. State (Fla. 1909), 49 So. 153 368, 386 Balverstadt v. Berger, 72 Neb. 462 276 Hainer v. Eldridge, 171 Mass. 250 567 Hamilton v. McKinney, 23 Ky. Law R. 1341 276 Hamilton v. Rathbone, 175 U. S. 414 65 Hammond v. King, 137 Iowa 548 608 Hancock v. Bugham, 31 Ky. Law Rep. 427 :;T^ Handler Ex parte, 1 76 Mo. 383, 386 368, 370 Banewacker v. Ferman, 47 111. App. 17 460, 490 Baney Ex parte, 51 Tex. Cr. 634 386 Banlon v. State, 51 Ark. 186 671 Hans v. State, 50 Neb. 150 661, 667, 68 I Bansberg v. People, 120 111. 21 22 Harrison v. Dickenson (Tex. Civ. 1908), 113 S. W. 776 070 Sanson v. Luce, 50 Ohio St. 440 228 Barbaughv. City of Monmouth, 71 111.867 155, 138, 139 Bardesty v. Bine, 135 Ind. 72 264 Harding v. Commonwealth. 105 Ya. 858 677 Bardison v. Stat.', 95 Ga. 337 651 Harlan v. Richmond, 108 Iowa 161 112, 632 Harlan v. Matt, 136 Ala. 150 90, 249, 271 HV TABLE OF CASES. SECTIONS Harmer In re Petitioner, 47 Kan. 262 632 Harp v. Commonwealth, 22 Ky. Law Rep. 1792 558 Harper, Matter of, 30 Misc. R. (N. Y.) 663 246, 257 Harper v. State, 85 Miss. 338 590 Harrington v. McKillop, 132 Mass. 567 487 Harris v. Intendant & Council of Livingston, 28 Ala. 577 136 Harris v. Sheffield, 128 Ga. 299, 412 Harris v. State, 50 Ala. 127 654 Harrison v. People, 195 111. 466. . . . 248, 254 Hart v. Duddleson, 20 111. App. 612 429 Hart v. State, 88 Ga. 635 225 Hartley v. Henretta, 33 W. Va. 222 636 Hartung v. People, 22 N. Y. 99, 100 426 Hastings Brewing Co. In re (Neb. 1908), 119 N. W. 27 235 Hatcher v. State, 80 Tenn. 368 104 Hatfield^. Commonwealth, 120 Pa. St. 395 36 Hawks v. Fellows, 109 Iowa 133 635 Hawkins v. Litchfield Common Council, 120 Mich. 390 343 Hawkins, Matter of, 165 N Y. 188 246, 257 Hawlens License, 3 Pa. Co. Ct. R. 474 300 Hayes v. Phelan, 4 Hun (N. Y.) 733 421, 487 Hayes Ex parte, 98 Cal. 555 ... .115, 163 Haynes v. Cass County Court (Mo. 1909), 115 S. W. 1084 413 Head v. Doekleman, 148 Ind. 145 276 Headington v. Smith, 113 Iowa 107 340, 566, 568 Hearn v. Brogan, 64 Miss. 334 245, 375 Heath v. Farnham, 53 Me. 172 533 Heath v. State, 105 Ind. 342 291, 298 Heblick v. Judge, 10 Ky. Law Rep. 811 271 Heck v. State, 44 Ohio St. 536 .63, 103 Hedderick v. State, 101 Ind. 564 120 Hedges v. Titus, 47 Ind. 145 112, 192 Heff, Matter of, 197 U. S. 488 43 Heiligs License, 12 Pa. Co. Ct. 538 300 Heinssen v. State, 14 Colo. 228 151, 232 Hein v. Smith, 13 W. Va. 358 268 Heintz v. La Page, 100 Me. 542 3 Hellerman v. Arnold, 71 111. 632 474 Helmuth v. Bell, 150 111. 263 441, 448, 492 Hemmer v. Bosson, 139 Iowa 210 024 Hemmens v. Bentley, 32 Mich. 89 481 Hencke v. Standiford, 66 Ark. 535 196, 197 Henderson v. Heynard, 109 Ga. 373 146 Henderson v. State, 49 Tex. Cr. 269 680 Hendersonville v. Price, 96 N. C. 423 297 Henke v. Mc Cord, 55 Iowa 378 146 Henkel v. Hoy, 74 N. J. L. 56 293 Henry v. Barton, 107 Cal. 535 270 Henry v. State, 26 Ark. 523 189, 190 Henry v. State, 64 Ark. 496 676, 66 TABLE OF CASES. l v SF.rr I Henry v. State, 113 Ind. 304 665 Henry, Mutter of, 56 App. Div. (X. Y.) 868 Ill Hensley v. Metcalfe County Court, 115 Ky. 810, 811 260, 276 Ilenwood v. State 41 Miss. 579 124 Herine v. Commonwealth, 13 Bush. (Ky.) 295 642 Hering In re (X. Y. C. A. 1909), X. Y. L. Journal Nov. 4, 1909 259 Hernig In re (X. Y. App. Div. 1909), 117 N. Y. Supp. 747 80, 194, 259 Herod v. State, 41 Tex. Cr. 597 679 Hershoff v. Beverly, 45 X. J. L. 288 206, 207 Hess v. Appell, 62 How Pr. (X. Y.) 313 • 559 Hestrand v. State, 28 Ky. Law Rep. 1315 683 Hetzer v. People, 4 Colo. 45 218 Hevren v. Reed, 126 Cal. 219 186, 187 Hewitt v. People, 186 111. 336 29 Hewitt v. People, 89 111. App. 367 28 Hewitt's Appeal, 76 Conn. 685 279, 286 Heyman v. Southern Ry. Co., 203 U. S. 270 54, 58 Heyman v. State, 64 Ga. 437 652 Heyman Ex parte, 45 Tex. Cr. 532 397. Hibbard v. People, 4 Mich. 125 501 Hiers v. State, 52 Fla. 25 688 Higgins v. State, 64 Md. 419 379 Higgins v. Talty, 157 Mo. 280 107, 186, 187 High v. State (Okla. 1909), 101 Pac. 115 57 Hight v. Fleming, 74 Ga. 593 198 Hilliard, Matter of, 25 App. Div. (X. Y.) 222 188 Hill v. Commissioners of Decantir, 22 Ga. 203 139 Hill v. Mayor of Dalton, 72 Ga. 314 152, 554, 648 Hill v. Perry, 82 Ind. 28 240 Hill v. Sheridan, 128 Mo. App. 415 188, 298 Hill v. Thixton, 94 Ky. 96 , 295 Hilliker v. Farr, 149 Mich. 444 438, 450, 461 Hine v. Belden, 27 Conn, 384 545 Hillman v. Gallagher (Tex. Civ. App. 1909), 120 S. W. 505 342, 363, 366 Hillsboro v. Smith, 110 X. C. 417 270 Hinchman v. Stoepel, 54 X. J. L. 486 378 Hinkle v. Commonwealth, 25 Ky. L. Rep. 313 661 Hinkle Ex parte, 104 Mo. App. 104 154, 216 Ilinton v. Slate, 132 Ala. 29, 31 13. 35 Hinton v. State, 68 Ga. 322 643 Hippen v. Ford, 129 Cal. 315 272 llirn v. State. 1 Ohio St. 15 193, 234 Hitchner v. Ehlers, 44 Iowa 44 489 Hoboken v. Goodman, 08 X. J. L. 217 77, 81, 207, 115, 304 Hoboken v. Grenier, 68 X. J. L. 592 162 Bodge v. state, lit; Ga, 852 33 Hodges v. Metcalf County Court, 116 Ky. 254 270, 270 Hodges v. Metcalf County Court, 117 Ky. 619 174, 240 Hodges v. Metcalf County Court. 25 Ky. Law Rep. 1553 240 Hodgman v. People, 4 Den. 235 648 l v j TABLE OF CASES. SECTIONS Hogens v. Police Jury, 121 La. 634 412 Hogue v. City of Ashland, 91 Wis. 629 199 Hoinire v. Hali'man. 156 liid. 470 431 Romberg Mercantile Co. v. State (Miss. 1909), 48 So. 622 504 Holberg v. Macon, 55 Miss. 112 ; 205 Ilolcombe v. People, 49 111. App. 73 37 Holland v. Seagrave, 11 Gray (Mass.) 207 ■ 523 Holland v. State, 51 Tex. Cr. 547 • • . . • 127 Holland v. State, 51 Tex. Cr. 143 339 Holley v. State 14 Tex. App. 505 368 Hollis v. Davis, 56 N. H. 127 422 Hollamlaek v. Drake, 37 Neb. 680 260 Holloran v. McCullough, 68 Ind. 179 287 Holmes v. State (Tex. Cr. 1909), 116 S. W. 571 376 Holppa v. City Council, 34 Wash. 554 329 Holt v. State, 62 Neb. 134 202, 228 Honey v. Guillaume (Ind. 1909), 88 K E. 937 262 Hood v. State, 35 Tex. Cr. App. 585 676 Hood, Von Glahn, 88 Ga. 405 164 Hoover In re, 30 Fed. 51 77, 194 Hoover v. Thomas, 35 Tex. Civ. App. 535 368, 399, 400 Hopsons Appeal, 65 Conn. 140 269, 274 Horan v. Chief Justice, 27 Tex. 226 351 Hagan v. Boonton, 62 N. J. L. 150 304 Horn v. Smith, 77 111. 381 460, 491 Hornaday v. State, 43 Ind. 306 253 Horning v. Wendell, 57 Ind. 171 192, 420 Horton v. Parsons, 37 Hun. (K Y.) 42 559 Hoist v. Lewis, 71 Neb. 365, 370 456, 460 Hotel Cambridge License, 20 Pa. Co. Ct. 229 300 Horton v. License Commissioner, 19 R. I. 650 285 Hottendorf v. State, 89 Ind. 15 68 Houch v. Ashland, 40 Oreg. 117. 135, 155 House v. State, 41 Miss. 737 145, 242, 248 Houser v. State, 18 Ind. 108 673 Houston v. Gran, 38 Neb. 687 436, 492 Howard v. Stanfill, 31 Ky. Law Rep. 207 385 Howard v. State, 6 Ind. 444 608 Howell v. State, 71 Ga. 224 61 ] lowed v. State, 124 Ga. 698 26, 638 1 [owes v. Maxwell, 157 Mass, 333 339, 345, 420 Rowland v. State (Fla. 1909), 47 So. 963 215, 273 Hovev v. Elliott, 107 U. S. 409 500 Hoyniak License, 9 Kulp. (Pa.) 368 244, 277 Hubbard v. Lancaster, 127 Ala. 1 68 Hubbell v. Polk County, 106 Iowa 618 183 Hudson v. State (Okla. 1909), 101 Pac. 275 57 Huff v. Aultman, 69 Iowa 71 481, 485 Buffsmitb v. People, 8 Colo. 175 151 Huggitos Kavanagh, 52 Iowa 368 439, 480 TABLE OF CASES. lvii Hull v. Welsh, 82 Iowa 11? 561 Hunt v. City of -New York, 47 App. Div. (N. Y.)295 182 Hunter, v. Senn, 61 S. C. 44 Hunter v. State, 79 Ga. 865 178 Huntington, City of v. Cheesbro, 57 Ind. 74 209 Hunzinger v. State, 39 Neb. 653 83, 190, 229 Hurl Ex parte, 49 Cal. 057 205, 216 Hurley In re. 95 Ala. 19 134, 136 Bussey v. State, 69 Ga. 51 653 Hutson v. Commonwealth, 32 Ky. Law Rep. 392 125 Indian Brewing Co's License In re (Penn. S. C. 1900), 75 Atl. 29 240 Indianapolis, City of v. Bieler, 138 Ind. 30 215 Ingersoll v. Skinner, 1 Den. (N. Y.) 540 190, 565 Inhabitants of New Gloucester v. Bridgham, 28 Me. 60 559, 569. 570 Inhabitants of Washington v. Eames, 6 Allen (Mass.) 417 '.'7 Intendant of Greensboro v. Mullius, 13 Ala. 341 218 Intendant of Marion v. Chandler, 6 Ala. 899 ... 216, 217, 218 Intoxicating Liquor Case, 25 Hun 751 4, 37, 38, 41, 123 Intoxicating In re Liquors, 120 Iowa 680 380 Iowa City v. Mclnnerny. 114 Iowa 586 165, 608 Irby v. State, 91 Miss. 5 12 418 Ireland, Matter of, 41 Misc. R. (N. Y. ) 425 256 Irish v. State, 34 Tex. Cr. 130 393, 404 Isley v. Stubbs, 5 Mass. 293 544 Isou v. Mayor of Griffin, 98 Ga. 623 304 Jackers v. Borgman, 29 Kan. 109 467, 474 Jackaon v. Brooknis, 5 Hun (K Y.) 530-535 443, 456, 4s7. 489 Jackson v. Camden, 48 N. J. L. 89 686 Ja.kson v. Noble, 54 Iowa 641 463, 481 Jackson v. People, 24 Colo. 254 151 Jackson v. State, 19 Ind. 312 36, 676 Jackson County v. Schmidt (.Mo. App. 1910), 124 S. W. 1071 445, 4 17 Jacksonville v. Block, 36 111. 507 558 Jacob v. Hogan, 73 Conn. 740 362. 365 Jacob v. Holgenson, 70 Conn. 68 350 Jacob Pharmacy Co. v. City of Atlantic, 89 Fed. 244 138, 139 Jahn In re Petitioner. 55 Kan. 694 169 James v. Helm, 129 Ky. 323 James v. State, 124 Ga. 72 61, 72 James v. State, 21 Tex. App. 189 393 James v. State, 21 Tex. App. 353 398 Jamison v. Burton, 43 Iowa 282 Janks v. State. 29 Tex. App. 233 600 ] v jji TABLE OF CASES. SECTIONS Jaro v. Holstein, 73 S. C. Ill 512 Jarozewski v. Allen, 117 Iowa 633 429, 433, 447 Jefferson v. People, 101 K Y. 19 686 Jefferson County v. Rertz, 56 Pa. St. 44 561 Jelinek v. State (Tex. Civ. App. 1908), 115 S. W. 908 614, 625, 662 Jenkins alias Jenks v. State, 4 Ga. App. 859 550 Jenks v. Pawlowski, 98 Mich. 110 625 Jenny, Matter of, 19 Misc. R. (N. Y.) 244 299 Jennings, Matter of, 130 App. Div. (K Y.) 645 318, 320 Jensen v. State, 60 Wis. 577 642 Jessey v. Speer, 107 Ga. 828 398 Jessee v. De Shong (Tex. Civ. App. 1907), 105 S. W. 1011 421 Jewell v. Welch, 117 Mich. 65 440 Jockers v. Borgman, 27 Kan. 109 490 Johnson v. Alkins, 44 Fla. 185 199 Johnson v. Drummond, 16 111. App. 641 429, 430 Johnson v. Fayette, 148 Ala. 497 214, 216 Johnson v. Gumininger, 83 Iowa 10 460 Johnson v. Johnson, 145 Mich. 586 434, 465 Johnson v. Johnson, 100 Mich. 326 446 Johnson v. People, 83 111. 431 642 Johnson v. Perkins, 48 Vt. 572 551 Johnson v. Rolls, 97 Tex. 453 421 Johnson v. Schultz, 74 Mich. 75 453, 454, 463, 480 Johnson v. State, 152 Ala. 61 293 Johnson v. State, 40 Ark. 453 643 Johnson v. State, 60 Ga. 634 228 Johnson v. State, 52 Tex. Cr. 624 408, 411 Johnson v. Williams, 48 Vt. 565 536, 545 Johnson, Matter of, Misc. R. (N. Y. ) 498 254, 334 Johnson's License, 156 Pa. St. 322 269 Johnston's License, 37 Pa. Super. Ct. 438 113 Jones v. Bates, 26 Neb. 693 425, 456, 492 Jones v. Commissioners, 106 N. C. 436 194, 271 Jones v. Fletcher, 41 Me. 254 527, 538, 539 Jones v. Paducah (Ky. C. A. 1909), 115 S. W. 801 353 Jones v. People, 14 111. 196 83 Jones v. Root, 6 Gray (Mass.), 435 534 Jones v. State, 67 Md. 256 379 Jones v. State, 46 Tex. Cr. 517 661 Jones v. State, 38 Tex. Cr. 533 408 Jones v. State, 32 Tex. Cr. 533 117 Jones v. Surprise, 64 N. H. 243 10 Jones v. Yokum S. D. 1919, 123 N W. 272 288 Jones County v. Sales, 25 Iowa 25 . 365 Jordan v. Bespalec, 86 Minn. 441 230 Jordan v. Nicolin, 84 Minn. 370 670 Jordan v. State, 22 Fla. 528 643 Jordan v. State, 37 Tex. Cr. 222 406 Judge v. Flournoy, 74 Iowa 164 441 TABLE OF CASES. 1JX SECTIONS Jud^e v. Jordan, 81 Iowa 519 461 Judge v. Kahl, 74 Iowa 486 624 Judge v. Kirk, 71 Iowa 183 622. 639 Judge v. O'Connor, 74 Iowa 166 441 Jugenheinier In re (Neb. 1908), 116 N. W. 964, 966 368 Junction City v. Webb, 44 Kan. 71 643 Jung Brewing Co. v. Commonwealth, 30 Ky. Law Rep. 267 293 Jung Brewing Co. v. Frankfort, 100 Ky. 409 211, 236 Jury v. Ogden, 56 111. App. 100 470, 472 K Kadgihn v. City of Bloomington, 58 111. 229 230 Kallock v. Newbert (Me. 1908), 72 Atl. 736 538 Kammann v. People, 124 111. 481 684 Kane v. Commonwealth, 89 Pa. St. 522 117 Kansas v. Flanders, 71 Mo. 281 219 Karan v. Pease, 45 111. App. 382 478 Karr v. Stahl, 75 Kan. 387 544 Kaufman v. Dostal, 73 Iowa 691 83, 86 Kearney v. Fitzgerald, 43 Iowa 580 435, 485 Kee v. McSweeney, 15 Abb. N. C. (N. Y.) 229 567 Keeling v. Poriner (Neb. 1909), 120 N. W. 155 464 Keeper v. Board Supervisors, 109 Mich. 645 416 Keepper v. State, 121 Ind. 491 671 Kehr v. Columbia (Mo. 1909), 116 S. W. 428 412 Kehrig v. Peters, 41 Mich. 475 436, 437, 458 Keiser v. Lives, 57 Ind. 431 240. 286 Keiser v. State, 58 Ind. 379 201 Keiser v. State, 78 Ind. 430 227, 289 Kellar v. State, 11 Md. 525 190 Kellar's Petition, 9 Pa. Dist. R. 340 300 Keller v. Lincoln, 67 111. App. 406 439 Kellerman v. Arnold, 71 111. 632 465 Kelley v. Pittsburgh, 104 U. S. 78 500 Kelley v. State, 37 Tex. Cr. 220 406 Kelly v. Dwyer, 7 Lea. (Tenn.) 180 0:::'. Kelly v. Faribault, 83 Muin. 9 17"' Kelminski's License, 164 Pa. St. 231 209 Kelty v. State, 61 N. J. L. 407 654 Kennedy v. Favor, 14 Gray (Mass.) 200 531 . 534 Kennedy v. Garrigan (S. D. 1909), 121 N. W. 7S;5 420. 421. 455 Kennedy v. Saunders. 142 Murewing Co.. 81 Neb. 219 449, 455 Musick v. Stall-, 51 Ark. 105 Myers v. Circuit Court (W. Va. 1908), 63 S. E. 201 Myers v. Conway, 55 Ind. 166 427 Myers v. Kirt, 64 Iowa 27 441 Myers v. Kirt, 57 Iowa 421 441 Myers v. People, 67 111. 435 643 Myers v. State, 47 Tex. Civ. App. 336 - - Myers v. State, 93 Ind. 251 21 N Nagle v. Keller, 237 III. t::i 472 Nagle v. Keller, 141 111. App. 441 421. 441. 443, 472 J xx TABLE OF CASES. SECTIONS Napier v. Hodges, 31 Tex. 287 173 Nast v. Eden, S9 Wis. 610 268 Nation v. District of Columbia, 38 Wash. Law Kep. 144 609 National Loan & I. Co v. Board of Supervisors, 134 Iowa 527 173 National Loan ('> X. Y. 407 314, 336, 358 People v. Masso, :i(i Misc. R. ( N. Y.) 164 391, 414 People v. Mauzer, is .Misc. R. (X. Y.) 292 299 People \. Maxwell, 83 Hun (X. Y.) 157 People v. McBride, 234 111. 146 186, 187, 192, People v. McCall, 94 X. Y. 587, 590 426 People v. McDowell, 70 Hun (X. Y.) 1 28] People v. McGowan, 44 App. Div. (XT. Y.) 30 319 People v. Meyers, 95 X. Y. 223 194, 337 People v. Mills, 91 Hun (X. Y.) 144 •. . . 274 People v. Moore, 155 Mich. 107 680 People v. Mount, 186 111. 560, 571 204, 210, 213 People v. Murray, 2 App. Div. 607 268 People v. Murray, 5 App. Div. (N. Y.) 441 194, 25-. People v. Murray, 16 Misc. R. (N.. Y.) 398 258 People v. Murray, 148 X. Y. 171 259 People v. Murray, 149 N. Y. 367 175. 1 89 People v. New-man, 85 Mich. 98 :;77 People v. Newman, 99 Mich. 148 178 People v. Norton, 7 Barb. 477 271, 287 People v. Norton, 76 Hun (N. Y.) 7 638 People v. Olmsted, 74 Hun (N. Y.) 323 637, 656 People v. Pag-e, 3 Park. Cr. 600 People v. Paquin, 74 Mich. 34 662, 670 People v. Pettit, 128 App. Div. (N. Y.) 870 246 People v. Polhamus, S App. Div. (N. Y.) 133 643, 653, 657, 658 People v. Pierson, 35 Misc. R. (N. Y.) 406 394, 403 People v. Possing, 137 Mich. 353 People v. Pullman Car Co., 175 111. 126 People v. Quant, 2 Park. Cr. 410 83 People v. Quant, 12 How. Pr. (X. Y.) 83, 89 87, l'H People v. Raims, 20 Colo. 489 186, 204, 21^. People v. Remus, 135 Mich. 629 127, 683 People v. Ringsted, 90 Mich. 371 653 People v. Ryan, so App. Div. (X. Y.) 524 679 People v. Sackett, 15 App. Div. (X. Y.) 290 200, 275, 395 People v. Sackett. 17 Misc. R. (N. Y.) 405 241 People v. Schmitz, 7 Cal. App. 330 234 People v. Sinell, 34 X. Y. St. R. S9S 595 People v. Smith, 69 X. Y. 175 People v. Soule, 74 Mich. 250 .-,-~ People v. Stocking, 50 Dark. (X. Y~.) 573 656 People v. Sykes, 96 Mich. 452 292 People v. Telford, 56 Mich. 541 662, 664 l xxv i TABLE OF CASES. SECTIONS People v. Thornton, Town of, 186 111. 162 225 People v. Tounsey, 5 Den. (X. Y.) 70 193, 648 People v. Town Clerk, 26 Misc. E. (N. Y.) 220 416 People v. Tupton, 52 Misc. K. (N. Y.) 336 664 People v. Utley, 129 Mich. 628 339 People v. Wade, 101 Mich. 89 375 People v. Walker, 60 Misc. E. (X. Y.) 130 270 People v. Wanek, 241 111. 529 383 People v. Warden, 6 App. Div. (N. Y.) 520 81, 105, 192 People v. Wells, 11 Misc. E. (N. Y.) 239 299 People v. Wheelock, 3 Park. Cr. (N. Y.) 9, 15 19, 22 People v. White, 127 Mich. 428 Ill People v. Whitney, 105 Mich. 622 419 People v. Williams, 162 N. Y. 240 182 People v. Woodman, 15 Daly (X. Y.) 136 310 People v. Worsley, 1 N. Y. Supp. 478 287 People v. Wright, 3 Him (X. Y.) 306 321 People v. Village of Crotty, 93 111. 180 213 People v. Vosbnrgh, 76 Hun. (N. Y.) 562 72, 121 People v. Zeiger, 6 Park. Cr. E. (X. Y.) 355 25 Perdue v. Ellis, 18 Ga. 586 134 Pegram v. Stortz, 31 W. Va. 220 445, 467, 469, 477 Perkins v. Girds, 29 Vt. 343 516, 541 Perkins v. Henderson, 68 Miss. 631 263 Perkins v. Ledbetter, 68 Miss. 327 268 Perkins v. Loux, 14 Idaho, 607 219 Perkin v. Smelzel, 21 111. 464 137, 172 Perkins v. State, 92 Ala. 66 688 Perkins, Ex parte, 34 Tex. Cr. 429 382, 405 Perry v. Chadwick, 7 Utah, 143 269 Peterson v. Brockey, (Iowa, 1909) 119 N. W. 967 462, 465, 467 Peterson v. Knoble, 35 Wis. 80, 81 463 Peterson v. State, 64 Neb. 875 653, 655, 662 Peterson v. State, 63 Neb. 251 21, 34 Petteway v. State, 36 Tex. (V. E. 97 27, 680 Petitfils & Pro. v. Town of Jeanerette, 52 La. Am. 1005 217 Pettit v. People, 24 Colo. 517 151 Phelps, In re (Neb. 1908), 110 X. W. 681 227, 265 Phillips v. Gilford, 104 Iowa 458 60S Phillips v. Goe, 85 Ark. 304 368 Phillips, In re (Neb. 1908), 118 \V. W. 1098 284 Phillips v. State. 2 Yerg. (Term.) 48S 68, 1:21 Phillips v. Mobile, 208 U. S. 472 83, 195, 211, 214 Phillips v. Tecumseh, City of, 5 Neb. 312 208 Phillips v. Stat.% 23 Tex. App. 304 409 Phoenix Brewing Co. v. Eumbarger, 181 Pa. St. 251 340 Pic-kens v. State, 20 Ind. 116 291 Pierce v. Commonwealth, 10 Bush. (K.v.) 6 274 Pierce v. County of Hillsborough, 57 X. H. 324 561 TABLE OF CASES. lxxvii ! CONS Pierce v. State, 13 N. H. 536 190 Pike County Dispensary v. Mayor and ( Ouncilmen of Brundige, i::o Ala. 193.. 615 Pike v. Slate, 40 Tex. Cr. App. 613 Oil Pioneer Trust Co. v. Stich, 71 Ohio St. 459 180 Piqua, City of, v. Zimmerlin, 35 Ohio St. 507 164 Piqua v Zimmerman, 35 < > 1 1 i o St. 507 164 Pisar v. State, 56 Neb. 455 251 Pitner v. State, 37 Tex. Cr. 268 381 Pitts v. State, 124 Ga. 79 677 Plainfield V. Watson, 57 N. J. L. 525 686 Plass, Matter of, 71 App. Div. (N. Y.) 488 Ill, 317, Pleuler v. State, 11 Neb. 547 100,189,192 Plucknett v. Tippey, 45 Neb. 342 349 Plumb v. Christie, 103 Ga. 686 91, 93, 226 Plnmmer v. Commonwealth, 1 Bush. (Ky.) 26 322 Police Jury v. Harper, 42 La. Ann. 776 138 Police Jury v. Mausina, 119 La. 300 378 Police Jury v. Mayor, 105 La. 512 402 Police Jury v. Ponchatoula, 118 La. 138 397 Police Jury v. Town, 49 La. Ann. 796 378 Pollard v. Allen, 96 Me. 455 126 Pollard, Ex Parte (Tex. Cr. 1907) 103 S. W. 878 379, 386 Pollard, Ex parte, 51 Tex. Cr. 488 379 Polmer's License, 3 .Pa. Co. Ct. R. 314 364 Pomroy v Sperry, 16 How. Prac. ( X. Y.) 211 559 Pontius v. Bowman Pros. 66 Iowa 88 612 Pope v. People, 26 111. App. 44 666 Porter v. Butterfield, 116 Iowa, 725 380 Portland, City of, v. Schmidt, 13 Oreg. 17 136, 138, 154, 206, 216, 219 Portwood v. Basket t, CI Miss. 213 173 Post v. Township Board, 64 Mich. 597 Potter v Deyo, 19 Wend. ( X. Y.) 361 Pottinger v. State, 54 Kan. 312 Pounders v. State, 37 Ark. 339 Powell v. Egan, 42 Neb. 482 Powell v. State, 69 \!a. 10 186, Powell v. Tuttle, 3 X. Y. 396 I I Powell, In re, (Neb. 1908) 119 X. W. 9 24'.'. Powers. Matter of, 34 Misc. R. (X. Y.) 636 Powers v. Mayor and Council of Deeat ur, 54 Ala. 214 Powers v. Winters, 106 Iowa, 751 Poynor v. Holzgrap, 35 Tex Cv. App. 233 Prather v. People, 85 III. 36 230, 342 Piedmont Club v. Commonwealth, ^r Va. 540 602 President & Trustees of Jacksonville v. Holland. 19 111. 271 President of Yillage of Platteville v. Mek'ernan. 54 Wis. 4*7 150 Prestwood v. Borland, 92 Ma. 599 402 Prestwood v. State, SS Ala. 235 379 lxxviii TABLE OF CASES. SECTIONS Price v. Liquor License Commissioners, 98 Md. 346 368, 375 Price v. Wakeham (Tex. Cr. App. 1908) 107 S. W. 132 451 Princeton, Town of, v. Vierling, 40 Ind. 340 199 Princeville v. Hitchcock, 101 111. App. 588 570 Prinzel v. State, 35 Tex. Cr. 274 202 Prohibitory Amendment Cases, 24 Kan. 700 83, 186 Providence v. Bligh, 10 K. I. 208 349 Providence, Town of, v. Shackelford, 106 Ky. 378 199 Prospect Brewing Co's Petition, 127 Pa. St. 523 271 Provo City v. Shurtliff, 4 Utah 15 138 Prussier v. Guenther, 16 Abb. N. C. (N. Y.) 230 6 Puckett v. Snider, 110 Ky. 261 382, 411 Puckett v. Snider, 22 Ky. Law, 1718 397 Puckett v. State, 71 Miss. 192 418 Publishing Co. v. Jersey City, 54 N. J. L. 437 252 Pumphrey v. Anderson (Iowa 1909) 119 N. W. 617 116 Purdy v. Smiton, 56 Cal. 133 254 Purdy, Matter of, 40 App. Div. (N. Y.) 133 258, 311, 316 Putney v. O'Brien, 53 Iowa 117 440 Q Quain v. Russell, 8 Hun (N. Y.) 319 457, 487 Quatler v. State, 120 Ind. 92 117 Quinlen v. Welch, 69 Hun (N. Y.) 584 493 Quinlan v. Welch, 141 N. Y. 15S 421, 426 Ouinnipica Brew. Co. v. Hackbarth, 74 Conn. 392 1S4, 301 Quintard v. Corcoran, 50 Conn. 34 349 Ouintard v. Knoedler, 53 Conn. 485 350 Quinton's License, 169 Pa. St. 115 276 Quirk, Kelley, Bunchell, Kearney, Gearhart & Boyton Licenses, 17 Pa. Sup. Ct. 327 300 Quist v. American Bonding & T. Co., 74 Neb. 692 317 R Rabe v. State, 39 Ark. 204 27 Radford v. Thornell, 81 Iowa 709 620 Radley v. Seider, 99 Mich. 431 453, 461, 463 Rafferty v. Buckman, 46 Iowa 195 486, 4S7, 488 Ragau v. State, 67 Miss. 332 654 Ragle v. Mattox, 159 Ind. 584 262,263 Rahn Township Licenses, 13 Pa. Dist. Rep. 547 247 Rahrer, In re, 140 U. S. 545, 555 44. 54 R.iisler v. State, 55 Ala. 64 646 Ramagnano v. Crook, 85 Ala. 226 271 Rancour's Petition, 66 N. H. 172 625 Randall Ex parte, 50 Tex. Cr. 519 396 TABLE OF CASES. \xx\x SECTIONS Randenbusch's Petition, 120 Pa. St. 328 268 Rasquin, Matter of, 37 Misc. R. (N. Y.) 693 311 Rathburn v. State, 88 Tex. 281 173, 375 Rattensbury v. Village of Northville, 122 Mich. 158 15 Rau v. People, 63 N. Y. 277 ). :,. 25 Raubold v. Commonwealth, 23 K'.y. L. Rep. 735 646, 647 Raubold v. Commonwealth, 21 Ky. Law Rep. 1125 100, 225 Rauch v. Commonwealth, 78 Pa. St. 400 376 Rawkins v. Vidvard, 34 Hun (N. Y.) 205 443, 465 Rawson v. State, 19 Conn. 292 662 Raymond v. Clement, lis App. Div. (N. Y.) 528 41 :: Read v. Board of Excise Comm're (N. J. 1908), 71 Atl. 120 248 Reath v. State, 16 Ind. App. 146 43G, 44r< Record v. Messenger, 8 Hun (N. Y.) 283 559 Redden v. Town of Covington, 29 Ind. US 281 Redding v. State, 91 Ga. 231 643 Reed v. Collins, 5 Cal. App. 494 77, 81, 83 Reed v. Territory, 1 Okla. Cr. 4S1 686 Redpath v. Nottingham, 5 Blackf (Ind.) 267 364, 365 Reese v. City of Atlanta, 63 Ga. 334 229, 302 Reese v. City of Newman, 120 Ga. 198 140 Reid v. Adams, 2 Allen (Mass.) 413 540 Reg-adanz v. State (Ind. S. C. 1908), 86 N. E. 449 547 Reget v. Bell, 77 111. 593 485 Reid v. Adams, 2 Allen (Mass.) 413 540 Reid v. Terwilliger, 116 N. Y. 530 443 Reily v. Otto, 108 Mich. 330 623 Reinhardt v. Fritzsche, 69 Hun (N. Y.) 565 421, 426, 445 Reisch v. People, 229 111. 574 489 Reithmiller v. People, 44 Mich. 280 117, 192 Rejon, Matter of, 85 App. Div. (N. Y.) 621 234 Reuter v. State, 43 Tex. Cr. 572 660 Revenue Agent v. Cox, 80 Miss. 561 362 Reyfelt v. State, 73 Miss. 415 36 Reyman Brewing Co. v. Brister, 179 U. S. 445 179 Reyman Brew. Co. v. Bustor, 92 Fed. 2S 228 Reynolds v. Commonwealth, 106 Ey. 37 381 Rhode Island. Perkins II. S. Co. v. Board of License Commissioners, 19 R. I. 643 260 Rhodes v. Iowa, State of, 170 U. R. 412 54. 57, 514 Bice v. Commonwealth, 22 Ky. Law Rep. 1793 72 Rice. Matter of, 95 App. Div. |\. V.) 2S 3S2. 384 Richards v. Columbia, 55 N. II. !><; 97 Richards v. Moore. 62 Vt. 217 461 Richland County v. Richland Center. 59 Wis. 591 181, 204 Richmond v. Shickler. 57 Iowa 4S6 439 Rickart v. People. 79 111. 85 579 Bicker, Petitioner. 32 Me. 37 558, 561 Ricks v. State. 16 Ga. 600 643 lxxx TABLE OF CASES. SECTIONS Riden v. Grimm Bros., 97 Tenn. 220 445 Kiilling v. State, 59 Ga. 601 685 Riggs v. State (Neb. 1909), 121 N. W. 588 552 Riley v. Rowe, 112 Ky. 817 268, 272 Riley v. State, 43 Miss. 397 643 Riley v. Trenton, 51 N. J. L. 498 134 Ring v. Nichols, 91 Me. 478 524, 543, 544 Ringler v. Lilly, 26 Ohio St. 48 439 Ripley v. MeCann, 34 Hun (N. Y.) 112 563, 567 Ristine v. Clements, 31 Ind. App. 338 196, 197 Ritchie v. Zalesky, 98 Iowa 589 106, 109 Ritchie, Matter of, 18 Misc. R. (N. Y.) 341 257 Rizer v. Tapper, 133 Iowa 628 628 Roach v. Kelly, 194 Pa. St. 24 429 Roberge v. Burnham, 124 Mass. 277 459, 556 Roberson v. State, 100 Ala. 123 3 Roberts v. O'Conner, 33 Me. 496 571 Roberts v. State, 26 Fla. 360 230, 662 Roberts v. State, 4 Ga. App. 207, 217 3, 37, 83 Roberts v. Taylor, 19 Neb. 184 457 Robinson v. Americus, 121 Ga. 180 140 Robinson v. Haug, 71 Mich. 38 76, 81, 83, 109 Robinson v. Miner (People v. Haug), 68 Mich. 549 343, 504 Robinson v. Randall, 82 111. 521 459 Robinson v. State, 38 Ark. 548 659 Rochester v. Upman, 19 Minn. 108 204 Rock County v. City of Edgerton, 90 Wis. 288 181 Roesch v. Henry (Oreg. 1909), 103 Pac. 439 383, 391, 392 Rogers v. Hahn, 63 Miss. 578 248 Rogers v. Hughes, 87 Ky. 185 427 Rogers v. State, 58 N. J. L. 220 653 Rogers, Matter of, 41 Misc. R. (N. Y.) 389 382 Rohn's License, 14 Pa. Co. Ct. R. 202 300 Rohnbacker v. City of Jackson, 51 Miss. 735 81, 83, 248 Rooney v. City Council of Augusta, 117 Ga. 709 134, 140 Roose v. Perkins, 9 Neb. 304 425, 439, 465, 473, 478, 481, 487 Roper v. Scurlock, 29 Tex. Civ. App. 464 383, 401, 405, 493 Rose v. Lampley, 146 Ala. 445 94 Rose v. State, 4 Ga. App. 588 59, 81 Rose v. State (Ind. S. C. 1909), 87 N. E. 103 45, 519, 527, 546 Rosecrants v. Shoemaker, 60 Mich. 4 467, 480, 492 Rosenberg v. Rohrer (Neb. 1909), 120 N. W. 159 213, 266, 286 Rosenbaum v. Commonwealth, 7 Ky. Law Rep. 590 124 Rosenham v. Commonwealth, 8 Ky. Law Rep. 519 229 Rosewater v. Pinzenscham, 38 Neb. 825 252, 265 Rossell v. Garon, 50 N. J. L. 358 138 Roswell v. State, 70 Miss. 395 376 Roth v. Eppy, 80 111. 283 425, 426, 435, 481, 485 Rothwell In re, 44 Mo. App. 215 419 TABLE OF CASKS. ) xxx j SECTIONS Rouse v. Welsheimer, 82 Mich. 172 453, 481, 490 Rowe v. Edmonds, 3 Allen (Mass.) 334 07 Rowland v. City of Greencastle, L57 [nd. 591 156, Rowland v. State, 21 Tex. App. 418 187 Rowley, Matter of, 34 Misc. R. (N. Y.) 662 391 Rubenstein v. Kahn, 5 Misc. R. (N. Y.) 408 299 Rude v. Fakes, 153 111. App. 456 465, 466 Ruge v. State, 62 End. 388 . 117 Ruhland v. Waterman (R. I. 1908), 71 Atl. 450 372 Ruitleman v. Halm, 20 Tex. Civ. App. 224 446 Ruland, Matter of, 21 Misc. R. (N. Y.) 504 256, 258 Rumyon v. State, 52 Ind. 320 291 Russell v. Anderson (Iowa 1909), 120 N. W. 89 632 Russell v. Sloan, 33 Vt. 656 38,39, 40 Russell v. Tippin, 12 Ohio C. C. 52 427 Russel v. State, 77 Ala 89 247, 270 Russellville, Ex parte, 95 Ala. 19 134, 136 Ruth In re, 32 Iowa 250 194 Rutherford's License, 2 Pa. Co. Ct. Rep. 78 284 Rutledge v. Board of Supervisors, (Mich. 1910) 124 N. W. 945 383 Ryall v. State, 78 Ala. 410 27 Ryan In re (Neb. 1907), 112 N. W. 598 213 Ryon, Matter of, 85 App. Div. (N. Y.) 621 242, 311 Ryon, Matter of, 39 Misc. R. (N. Y.) 698 316 s Sackett v. Ruder, 152 Mass. 397 421, 445 Sacramento v. Dillman, 102 Cal. 107 198, 204 Saffroi v. Coburn, 32 Tex. Civ. App. 75 361 Salt Lake City v. Wagner, 2 Utah 400 215 Sanderlin v. State, 2 Humph. (Tenn.) 315 121 Sanders v. State, 2 Iowa 230 517, 547 Sanders v. State, 34 Neb. 872 112, 117, US, 151 Sanders v. Town Commissioners, 30 Ga. 679 212 Sanders v. Town Council of Elberton, 50 Ga. 178 219 Sanderson v. Goodrick, 46 Barb. (N. Y.) 616 298 Sanford v. Bennett, 24 N. Y. 20 426 Sandige v. Widman, 12 S. D. 101 447 Sandoval v. Meyers, 8 N. M. 636 196 Sandys v. Williams, 46 Oreg. 327 123 San Luis Obispo Co. v. Greenberg, 120 Cal. 300 206 Santa Cruz v. Santa Cruz, R. R. Co., 56 Cal. 143 198 Santo v. State, 2 Iowa 165 83, 368, 371, 498, 537. 549 Santo v. State, 4 Iowa 349 C46 Sansom v. Greenough, 55 Iowa 127 471 Santer v. Anderson, 112 HI. App. 580 432 Sargent v. Little, 72 N. H. 555 287 Ixxxii TABLE OF CASES. SECTIONS Sarlls v. United States, 152 U. S. 570, 572 7, 11, 12, 24 Sarris v. Commonwealth, 83 Ky. 327 371, 3S6 Sasser v. Adkins, 108 Ga. 228 198 Sasser v. Martin, 101 Ga. 447 194 Savage V. Commonwealth, 84 Va. 582 657, 676 Savage v. Commonwealth, 84 Va. 619 83, 368, 371 Savage v. Muphries (Tex. Civ. App. 1909), 118 S. W 399, 400, 402 Savage v. Wolfe, 69 Ala. 569 396 Savier v. Chipman, 1 Mich. 116 234 Sawicki v. Keron, (N. J. S. C. 1910) 75 Atl. 477 313 Sawyer v. Botti, (Iowa 1910) 124 N. W. 787 629 Sawyer Medicine Co. v. Johnson, 178 Mass. 374 511 Saylor v. Duel, 236 111. 429 412 Scahill v. Aetna Indemnity Co. (Mich 1909), 122 N. W. 78.. 340, 452, 456 Schafer v. Boyce, 41 Mich. 256 457 Schafer v. Smith, 63 Ind. 226 465 Schafer v. State, 49 Ind. 460 457 Schiek v. Sanders, 53 Neb. 664 487 Schilling Ex parte, 38 Tex. Cr. 287 397, 404 Schlachter v. Stokes, 63 N. J. L. 138 212 Schlandecka v. Marshall, 72 Pa. St. 200 269 Schlasser v. Mould (Iowa 1909), 121 N. W. 530 634 Schlicht v. State, 56 Ind. 173 34 Schlosser v. State, 55 Ind. 82 434 Schmeltz v. State, 8 Ohio C. C. 82 108 Schmerman v. Town of Highland Park (Ky. C. A. 1908), 113 S. W. 507 175, 226, 268 Schmidt v. Indianapolis, 168 Ind. 631 83, 211 Schmidt v. Mitchell, 84 111. 195 429, 432, 4S7 Schullherr v. State, 68 Miss. 227 367 Schmither, Ex parte, 6 Neb. 108 232 Schneider v. Hosier, 21 Ohio St. 98 467, 4S7 Schneider, Matter of, 11 Oreg. 28S, 297 15, 204 Schnedes v. State (Okla 1909), 99 Pac. 894 55 Schnutt's License, 37 Pa. Super. Ct. 420 248, 311 Schoenhopen Brewing Co's License, 8 Pa. Super. Ct. 141 236 Schomaker, Matter of, 15 Misc. (N. Y.) 648. . . . •. 274 School District v. Thompson, 51 Neb. 857 331 Schroder v. Crawford, 94 111. 357 429, 458, 487 Sohuarn v. Osborn, 59 Ind. 245 457 Schulte v. Menke, 111 111. App. 212 421,471 Schulte v. Schleeper, 210 111. 357 421, 429 Schuck v. State, 50 Ohio St. 493 117 Schuneman v. Sherman, 118 Iowa 230 380 Schulherr v. Bordeaux, 64 Miss. 59 190,195 Schultz v. State, 32 Ohio St. 276 630 Schuster's Appeal, 81 Conn. 276 259, 26S Schuyler. Matter of, 63 App. Div. (N. Y.) 206 316 Schuyler, Matter of, 32 Misc. E. (N. Y.) 221 306. 313 TABLE OF CASES. lxxxiii SECTIONS Schwab v. People, 4 Hun (N. Y.) 520 36, 653, 655 Schwartz v. People (Colo. App. l'JO'J), 104 Pac. 92 378 Schwartz v. People (Colo. 1009), 104 Pac. 92 227 Schwartz v. State, 32 Tex. Cr. 387 194 Schwearnian v. Commonweal t li, 'J'.) Ky. 296 280 Schwuchow v. City of Chicago, 68 111. 444 136, 164, 187, 220 Scott v. Board of Trustees (Ky. C. A. 1909), 116 S. W. 788 200 Scott v. Chope, 33 Neb. 41 .489 Scott v. Donald, 165 U. S. 58, 91 82 Seager v. Kankakee County, 102 111. 669 268 Sealzo v. Sackett, 30 Misc. R. (N. Y.) 543 199 Searcy v. City of Lawrence, 20 Ky. Law Rep. 1920 197 Searcy, City of, v. Turner (Ark. 1908), 114 S. W. 472 145 Seattle v. Clark, 28 Wash. 717 204, 225, 308 Seay v. State, 51 Tex. Cr. 444 396 Sebastian v. State, 44 Tex. Cr. 508 17, 387, 418 Secor v. Taylor, 41 Hun (N. Y.) 123 465 Segars v. State, 35 Tex. Cr. 45 393 Segars v. State, (Tex. Cr. App. 1899) 51 S. W. 398 648 Segars Ex parte, 32 Tex. Cr. 553 3S2 Seidlitz v. Jackson, (Iowa 1910) 125 N. W. 228 634 Seifried v. Commonwealth, 101 Pa. St. 200 637, 653 Seim v. State, 55 Md. 566 586 Seitz, Matter of, 32 Misc. R. (N. Y.) 108 333 Sellars v. Foster, 27 Neb. 118 462 Senior v. Patterman, 44 Ohio St. 661 173, 178 Seube, Ex parte, 115 Cal. 629 206 Severance v. Murphy, 67 S. C. 409 91 Sexton v. Board of Excise Commissioners (N. J. L. 1908), 69 Atl. 470. . 279 Sexson v. Kelley, 3 Neb. 104 364 Seymour, Matter of, 47 App. Div. (N. Y.) 320 328 Sha ffer v. Stern, 160 Ind. 375 261, 262, 263 Sharp v. State, 17 Ga. 290 686 Sharpley v. Brown, 43 Hun (N. Y.) 374 488 Shaw v. State, 56 Ind. 188 12. 295 Shea v. City of Muncie, 14S Ind. 14 156, 221, 554 Shear v. Brinkman, 72 Iowa 698 622, 629 Shear v. C.reen, 73 Iowa 688 624, 6S5 Sheehan v. Louisville & N. R. Co., 125 Ky. 47S 376 Shepard v. City. 51 La. Aim. sir 254 Sheppard v. Dowling, 127 Ala. 1 90 Sheridan, Township of. v. Frahm, 102 Iowa 5 182 Sheriff v. Daryle, 107 La. 510 205, 222 Sherlock v. Stuart, 96 Mich. 193 77. 134, 156, 163, 204, 274 Sherry. Matter of, 25 Misc. R. ( \\ Y.) 361 255 Shields v. State, 38 Tex. Cr. 252 387, 393 Shifletl v. Grimsley, lot Va. 424 190 SI) reveport v. Draiss & Co., Ill La. 511 209, 304 Shugart v. Egan, 83 111. 56 432, 487 l xxxiv TABLE OF CASES. SECTIONS Shull v. Arie, 113 Iowa 170 480 Shultz v. Cambridge, 38 Ohio St. 659 159 Sibila v. Bahney, 34 Ohio St. 399 420, 427, 465, 469 Sickinger v. State, 45 Kan. 414 630 Siegle v. Rush, 173 111 559 435, 490 Sif red v. Commonwealth, 104 Pa. St. 179 118 Sikes, Ex parte, 102 Ala. 173 216 Simms, Ex parte, 40 Fla. 432 135, 209 Simpson v. Commonwealth, 30 Ky. Law Rep. 132 383 Sinclair v. State, 45 Tex. Cr. 487 408 Sires v. State, 73 Wis. 251 651 Sisson v. Lampert, (Mich. 1910) 124 N. W. 512 420, 487 Skinner v. Hughes, 13 Mo. 440 436 Skinner v. State, 120 Ind. 127 662 Smith v. Barrie, 56 Mich. 314 623 Smith v. Elizabeth, 46 N. J. L. 312 250 Smith v. Geer, 10 Tex. Civ. App. 252 352 Smith v. Huntington, 3 N. H. 78 544 Smith v. Kibber, 9 Ohio St. 563 130 Smith v. Lafar, 67 S. C. 491 512 Smith v. Madison, City of, 7 Ind. 86 209 Smith v. Patton, 103 Ky. 444 378, 383 Smith v. People, 141 111. 446, 447 421, 433, 487 Smith v. Reynolds, 8 Hun 128 436, 487 Smith v. Skow, 97 Iowa 640 180 Smith v. State, (Ind. S. C. 1910) 89 N. E. 862 278 Smith v. State, 19 Conn. 493 646 Smith v. State, 113 Ga. 758 25 Smith v. State, 112 Ga. 291 370, 386 Smith v. State, 90 Ga. 133 219 Smith v. State, 3 Ga. App. 326 550 Smith v. Town of Warrior, 99 Ala. 481 139 Smith v. Village of Adrian, 1 Mich. 495 229, 559 Smith v. Young, 13 Okla. 134 266 Smith's Appeal, 65 Conn. 135 241, 284, 285 Smith, Ex parte, 38 Cal. 702 162 Smith, Matter of, 44 Misc. R. (N. Y.) 384 391, 394, 415 Smiser v. State, ex rel. King, 17 Ind. App. 519 435, 457, 462 Snead v. State (Tex. Cr. 1909), 117 S. W. 983 72, 372 Snider v. State, 81 Ga. 753 17 Snow v. State, 50 Ark. 557 I 5 Snyder v. Launt, 1 App. Div. (N. Y.) 142 445 Snyder v. State, 78 Miss. 366 683 Somers v. Vlazney, 64 Neb. 383 248 Sopher v. State, 169 Ind. 177 66, 76, 80, 190 Sorenson, In the matter of, 29 Mich. 475 558 Sothman v. State, 66 Neb. 302 21, 49S, 500, 546, 593 South v. Commonwealth, 79 Ky. 493 658 South Carolina R. Co. v. McDonald, 5 Ga. 531 565 TABLE OF CASES lxxxv noire Southern Express Co. v. Ross Co., 124 Ga. 581 209, 211 South Shore Club v. People, 228 111. 75 579 Sparks v. People, 89 111. 617 227 Sparrow's Petition, 138 Pa. St. 10 268,269 Speagle, Ex parte, 34 Tex. Cr. 4G5 389 Specht v. Commonwealth, 24 Pa. St. 103 558 Sperring's License, 7 Pa. Super Ct. 131 268 Sperry, Matter of, 25 Misc. R. (NT. Y.) 361 246 Sprayberry v. Atlantic, 87 Ga. 120 186, 190, 304, 308 Springer v. United States, 102 U. S. 586 500 Springfield v. State, 25 Ga. 474 643 Stafford v. Levinger, 16 S. D. 118 487 Stahnka v. Kretle, 66 Neb. 829 430 Stallworth v. State, 16 Tex. App. 345 83 Stamper v. Commonwealth, 102 Ky. 33 374 Stamper v. Commonwealth, 31 Ky. Law Eep. 707 376 Stanley v. Leahy, 87 111. App. 465 439, 440 Stanley v. Monnet, 34 Kan. 708 268 Stanton v. Simpson, 48 Vt. 628 420, 459 Stapp v. State, 33 Ind. 255 644 Star Brewery Co. v. Primas, 163 111. 652 623 Starkey v. Palm (Neb. 1907), 114 N. W. 287 249 State v. Abbott, 31 N. H. 434 661, 664 State v. Adams, 16 Ark. 497 662 State v. Adams, 81 Iowa 593 636 State v. Adams, 44 Kan. 135 674 State v. Adams, 20 Iowa 486 288 State v. Adams, 51 N. H. 568, 569 3, 7 Slate v. Ahern, 54 Minn. 195 686 State v. Aiken, 42 S. C. 222 76, 78, 89, 91, 93 State v. Allen, 32 Iowa 491 643 State v. Allen, 63 Kan. 598 653, 657 State v. Allmond, 2 Houst. (Del.) 612 50, 83, 87 State v. Alliance, 65 Neb. 524 271. 276 State v. Ambs, 20 Mo. 214 US Slate v. American Express Co., 118 Iowa 447 510 State v. Amery, 12 E. I. 64 51, 83 Slate v. Anderson, 81 Mo. 78 125 State v. Andrews, 26 Mo. 172 193 State v. Andrews, 28 Mo. 14 193 S-l ate v. Andrews, 11 Neb. 523 213 State v. Andrews. 82 Tex. 73 109 State v. Apfel. 124 La.— 309 State v. Arie, 95 Iowa 375 682 State v. Arlen, 71 Iowa 216 546 State v. Atkinson. 139 Ind. 426 117 State v. Aulman. 76 Iowa 624 124 State v. Austin, 114 N. C. 855 113, 134. 161 State v. Austin Club, 89 Tex. 20 691 l XXX vi TABLE OF CASES. SECTIONS State v. Back, 99 Mo. App. 34 643 State v. Bailer, 91 Minn. 186 181 State v. Bailey, 43 Ark. 150 643 State v. Bailey, 124 La. 65 State v. Baker, 32 Mo. App. 98 271 State v. Baldwin, 109 Mo. App. 573 392 State v. Ball, 27 Neb. 601 648, 665 State v. Baker, 50 Oreg. 381, 384 15, 81, 83, 114 State v. Barber, 19 S. D. 1 368, 370, 371, 395 State v. Barge, 82 Minn. 256 142, 160 State v. Barker, 4 Sneed (Tenn.) 554 118 State v. Barnett, 110 Mo. App. 592 670 State v. Barrels of Liquor, 47 N. H. 3G9 541, 544 State v. Barringer, 110 N. C. 524 103 State v. Barron, 37 Vt. 57 18 State v. Bartlett, 47 Me. 388, 396 521, 527, 537 State v. Basserman, 54 Conn. 88 653 State v. Bass Pub. Co. (Me. 1908), 71 Atl. 894 54, 60 Spokane v. Baughman (Wash. 1909), 103 Pac. 14 603 State v. Baughman, 20 Iowa 497 666 State v. Bayne, 100 Wis. 35 298 State v. Beam, 51 Mo. App. 368 375 State v. Beaumier, 87 Me. 214 669 State v. Becker, 20 Iowa 438 643, 655 State v. Beckroge, 49 S. C. 484 647, 665 State v. Belfast, 68 Me. 187 504 State v. Beloit, 74 Wis. 267 337 State v. Benadom, 79 Iowa 90 202 State v. Bengsch, 170 Mo. 81 179 State v. Benjamin, 29 Vt. 101 661 St ate v. Bennet, 3 Harr. (Del.) 565 675 State v. Bennett, 95 Me. 197 530 State v. Bennett, 102 Mo. App. 247 339 State v. Bennett, 19 Neb. 191 210 State v. Benz, 41 Minn. 30 68, 121 State v. Beswick, 13 K. I. 211 19 te v. Bevans, 52 Mo. App. 130 372 State v. Biddle, 54 N. H. 379 3, 28 State v. Bird, 108 Mo. App. 163 3S6, 390 State v. Bixman, 162 Mo. 1, 39 44, 77, 83, 130, 132 Slate v. Blair & Certain Intoxicating Liquors, 72 Iowa 591 522, 525 State v. Blairsdell, 33 N. H. 388 651 State v. Board of Canvassers, 79 S. C. 246 417 State v. Board of Canvassers, 78 S. C. 461 401 State v. Board of Commissioners, (Wyo. 1909) 105 Pac. 295 194 State v. Bock, 9 Tex. 369 173 State v. Bodecker, 11 Wash. 417 643 State v. Bonnell, 119 Ind. 494 186 State v. Bossa, 69 Conn. 335 402 TABLE OF CASKS. lxxxvii SECTIONS State v. Boston & Pickwick Club, 45 La. Ann. 585 190, 584 State v. Boucher, 59 Wis. 477 G4G State v. Boughner, 5 S. D. 461 643 State v. Bourk, 34 Mo. App. 325 395 State v. Bowman, 70 Iowa 566 63 I State v. Brackett, 41 Minn. 33 121 State v. Bradford, 13 S. D. 201 642 State v. Bradish, 95 Wis. 205, 207 187, 322, 324 State v. Bradley, 26 Fed. 289 83 State v. Bradley, 96 Me. 121 531, 534 State v. Bradshaw, 2 Swan (Tenn) 627 642 State v. Brady, 41 Conn. 588 71 State v. Brann, 83 Mo. 480 659 State v. Brattleboro, 68 Vt. 520 98 State v. Brennan, 2 S. D. 384 45, 77, 638 State v. Brennan's Liquors, 25 Conn. 278, 286, 287 499, 500, 502, 524, 530, 537, 542 State v. Brindle, 28 Iowa 512 24 State v. Brittain, 89 N. C. 574, 576 2, 145 State v. Brooks, 74 Kan. 175 680 State v. Brosins, 39 Mo. 534 674 State v. Brown, 51 Conn. 1 10 State v. Brown, 19 Fla. 563 248 State v. Brown, 135 Iowa 40 283 State v. Brown, 41 La. Ann. 771 229, 643 State v. Brown, 31 Me. 520 638 State v. Brown, 130 Mo. App. 214 391, 393, 418 State v. Brown, 60 N. H. 205 126 State v. Bruce, 26 W. Va. 153 656 State v. Bryson, 90 X. C. 747 678 Stale v. Buckner, 20 Mo. App. 420 644 State v. Buechler, 10 S. D. 156 182, 189, 200 State v. Buffalo, City of, 2 Hill 434 560 State v. Burkett, 51 Kan. 175 638 State v. Burroughs, 72 Me. 479 671 State v. B iii-row's Liquors, 37 Conn. 4:25 537, 54") State v. Bush (Mo. App. 1909), 118 S. W. 670 411 State v. Bussamus, 10S Iowa 11 106 State v. Butcher, 40 Ark. 362 642 State v. Cahen, 35 Md. 236 233 State v. Cain, 78 S. C. 348 62 State v. Cain, 9 W. Va. 559 685 State v. Campbell, 214 Mo. 302 368 State v. Cantborn, 40 Mo. App. 94 247 State v. Capitol Brew. & I. C<>. (Ala. 1909), 50 So. 312 178, State v. Carmody, 50 Oreg. 1 21, 50. 411 1 State v. Carnahan, 63 Mo. App. 244 677 State v. Carpenter, 20 Ind. 219 651 State v. Carter, 48 Mo. 481 562 lxxxviii TABLE OF CASES. SECTIONS State v. Carter, 7 Hump. 15S 643 State v. (ass County Court (Mo. App. 1909), 119 S. W. 1010 271, 389 State v. Cassety, 1 Rich. L. (S. C.) 90 643 State v. Certain Intoxicating Liquors, 64 Iowa 300 526 v. Certain Intoxicating Liquors, 76 Iowa 243 9 State v. Certain Intoxicating Liquors, 92 Iowa 762 551 State v. Chamberlain, 74 Iowa 266 127, 557 State v. Chartrand, S6 Me. 547 521 State v. Chase, 33 La. Ann. 287 217 State v. Chilton, 39 Mo. App. 51 676 State v. Chisnell, 36 W. Va. 659 643 State v. Church, 6 S. D. 89 25 State v. City Council, 7 Wyo. 417 77, 83, 134, 156, 209, 215, 219, 232 State v. Clark, 3 Ind. 451 639 State v. Clark, 54 Mo. 17 209 State v. Clark, 28 N. H. 176 136, 613 State v. Clark, 62 Vt. 278 611 State v. Cleary, 97 Iowa 413 681 State v. Cloud, 6 Ala. 628 173 State v. Cloughly, 73 Iowa 626 10, 685 State v. Cobaugh, 78 Me. 401 505 State v. Cofen, 48 Me. 464 658 State v. Coffeyville (Kan. 1908), 97 Pac. 372 225 State v. Cofield, 22 S. C. 301 191 State v. Coleman, 34 Neb. 440 263 State v. Collins (Minn. 1909), 120 N. W. 1081 148 State v. Collins, 68 N. H. 299 614, 621, 625, 627 State v. Collins, 28 R. I. 439 685 State v. Collins, 74 Vt. 43 614, 628 State v. Columbia, 17 S. C. 80 204 State v. Colwell, 3 R. I. 284 646 State v. Commissioners, 22 Fla. 1 228, 248, 253, 271, 298 State v. Commissioners, 22 Fla. 364 248 State v. Commissioners, 20 Fla. 425 248, 270, 271 State v. Commissioners, 45 Ind. 501 271 State v. Common Council, 94 Minn. 81 149, 219, 271 State v. Conley, 22 R. I. 397 194 State v. Conlin, 27 Vt, 318 554 State v. Conner, 30 Ohio St. 405 665 State v. Connolly, 96 Me. 405 537 State v. Cooke, 24 Minn. 247 386 State v. Cooper, 101 N. C. 684 372, 417 State v. Corron, 73 N. H. 434 349 v. Costa, 78 Vt. 198 680 State v. Cottengrin, 172 Mo. 129 272 State v. Cottle, 15 Me. 473 662 State v. Couch, 54 S. C. 286 643 State v. Coulter, 40 Kan. 87 38 State v. County Court, 66 Mo. App. 96 241 TABLE <>!■' (ASK-. lxxxix si ' i State v. County Court (Oreg. 1900), 101 Pac. 907 State v. Courtney, 7:; [owa 619 State v. Court of Common Pleas, 3G N. J. L. 72 368 Slate v. Cox, 29 Mo. 475 I 7 State v. Crawford, 28 Kan. 743 614 State v. Creeden, 78 Iowa 556 510 State v. (Yon, 23 Minn, IK) 230, State v. Cronyn, 48 Mo. 480 562 State v. Crow, 53 Kan. 662 6 . I State v. Cummings, 17 Neb. 311 178, State v. Cummins, 76 Iowa 133 ' State v. Cunningham, 25 Conn. 195 r , ! State v. Curley, 33 Iowa 359 685 State v. Currie, 8 N. W. 545 21 State v. Curtiss, 69 Conn. 8G 688 State v. Curtis, 8 Tex. Civ. App. 506 352 State v. D'Alemberte, 30 Fla. 545 24^ State v. Dannenberg (N. C. 1909), 63 S. E. 946 139 State v. Davis, 44 Kan. 60 128, 616 State v. Davis, 119 La. 247 271 State v. Davis, 23 Me. 403 121 State v. De Bar, 58 Mo. 395 209 State v. Delano, 54 Me. 501 84 State v. Dennie, 51 La. Ann. 608 218 State v. Denton, 128 Mo. App. 304 267 State v. Depeder, 65 Miss. 26 344 State v. Deschamp, 53 Ark. 490 47, 67 State v. Dillard Moore, 107 Mo. 78 368 State v. Dobbins, 116 Mo. App. 29 391 State v. Doherty, 3 Ida. 384 175. 189 State v. Donahue, 120 Iowa 154 106, 107, 109 State v. Donald, 165 U. S. 58 92 State v. Donaldson, 12 S. D. 259 653, 659, 666 State v. Dorr, 82 Me. 212 79 State v. Dowdy, 145 N. C. 432 583 State v. Downs, 116 N. C. 1064 84 State v. Doyle, 15 R. I. 325 109 State v. Doyle, 11 R. I. 574 643 State v. Drake, 86 Tex. 329 121 State v. Drake, 83 Wis. 257 399, 403 State v. Duane, 100 Me. 447 519 State v. Dubriel, (N. H.) 1909) 72 Atl. 1048 349 State v. Dudgeon (Neb. 1909), 119 N. W. 676 134 State v. Dudley, 33 Ind. App. 640 291 State v. Dugan, 110 Mo. 138 393 State v. Dunlap, 81 Me. 389 644 State v. Dunphy, 79 Me. 104 501, 532 State v. Durein, 70 Kan. 13 47. 77. S3 State v. Durein. 70 Kan. 1 45. 47, 303 xc TABLE OF CASES. SECTIONS State v. Durein, 46 Kan. 695 632 State v. Dwyer, 21 Minn. 512 203, 220 State v. Easton Social Club, 73 Md. 97 586 Stan- v. Edlavitch, 77 Md. 144 642 State v. Edwards, 60 Mo. 490 640, 686 State v. Eifinger, 44 Mo. App. 81 19 State v. Elff, 49 Ind. 282 67 State v. Elliott, 45 Kan. 525 669, 677 State v. Emerick, 35 Ark. 324 652 State v. Emery, 98 N. C. 768 417 State v. Emery, 98 N. C. 668 653, 686 State v. Erskine, 66 Me. 358 520, 525, 532 State v. Estabrook, 6 Ala. 653 232 State v. Estabrook, 29 Kans. 739 355 State v. Evans, 83 Mo. 319 267, 670 State v. Fairfield, 37 Me. 517 98 State v. Fairgrieve, 29 Mo. App. 641 646, 647 State v. Falkenheimer, 123 La. 49 So. 214 112, 194 State v. Farmer, 104 N. C. 887 637, 638, 650 State v. Farrell, 30 W. Va. 683 643 State v. Fay, 44 N. J. L. 474 146 State v. Fenton, 29 Neb. 348 182 State v. Ferguson, 72 Mo. 297 131 State v. Ferguson, 33 N. H. 424 212 State v. Fezzette, 103 Me. 467 529 State v. Findley, 45 Iowa 435 668 State v. Fire & Police Board (Colo. S. C. 1908) 96 Pac. 554 254 State v. Fisher, 35 Vt. 584 98 State v. Fisher, 33 Wis. 154 65, 151, 339 State v. Fitzpatrick, 16 R. I. 54, 57 52, 81, 83, 85 State v. Fitzsimmons, 30 Mo. 236 647 State v. Fleckenstein, 26 Minn. 177 218 State v. Fleming, 32 Kan. 588 202 State v. Foreman, 121 Mo. App. 502 393 State v. Foren, 7S Kan. 654 551 State v. Forkner, 94 Iowa 1 :;v " State v. Fort, 107 Mo. App. 328 248, 268, 271 State v. Foster, 23 N. H. 348 686, 688 State v. Fragiacomo, 70 Miss. 799 1!! ; State v. Frahm, 109 Iowa 101 615 e v. Frame, 39 Ohio St. 399, 408 83, 174, 184 State v. Fredericks, 16 Mo. 382 293 State v. Frederiekson, 101 Me. 37 9, 81, 83 e v. Freeman, 27 Vt. 520 377 State v. Frost. 103 Tenn. 684 1°4 ■ v. Fulkerson, 73 Ark. 163 519 State v. Gelpi, 48 La. Ann. 520 574, 584 State v. Oerhardt, 145 Ind. 439 07, 75, 120, 1S6, 240, 260, 263, 27S State v. Gerhardt, 48 N. C. 178 231, 295 TABLE OF CASES. Xci SECTIONS State v Giersch, 94 N. C. 720, 724 2, 7, 17, 24, 35 State v. Gifford, 111 Iowa G48 106, 616, State v. Gillilan, (Vt. 1910) 75 Atl. 711 274 State v. Giroux, 75 Kan. 695 682 State v. Gilman, 33 \V. Va. 146 79, 85 State v. Guiding, 28 Ind. App. 233 367 State v. Gorman (Ind. 1908), 85 N. E. 763 240, 242, 260 State v. Goyette, 11 It. I. 592 24 State v. Grant, 20 S. D. 164 678 State v. Grames, 68 Me. 418 504 State v. Graves (Mo. 1909), 115 S. W. 1054 3?:. State v. Gravlin, 16 R. I. 407 9 State v. Gray, 61 Conn. 39 40, 47, 190, 228 State v. Gray, 111 La. 853 71, 72 State v. Green, 61 S. C. 12 677 State v. Gregory, 110 Iowa 624 41, 669 State v. Gregory, 74 Kan. 467 128 State v. Grisenhause, 20 Iowa 227 686 State v. Gross, 59 Vt. 226 510 State v. Grunenald, 123 La.— 49 So. 162 190 State v. Guinness, 16 It. I. 401 9 State v. Gurney, 33 Me. 527 525 State v. Gurney, 37 Me. 156 83 State v. Gurlagh, 76 Iowa 141 676 State v. Gummer, 22 Wis. 441 643 State v. Guthrie, 90 Me. 448 519 State v. Haf soos, 1 S. D. 382 644 State v. Haines, 35 Oreg. 379 134 State v. Hall, 81 Me. 34 543 State v. Hall, 78 Me. 37 538 State v. Hall, 26 W. Va. 236 648 State v. Ham, 64 N. J. L. 49 124, 676 State v. Hammel, 134 Wis. 61 227, 306 State v. Hanlon, 24 Neb. 608 260 Stale v. Hanson, 16 N. H. 347 80, 133 State v. Hardy, 7 Neb. 377 155, 190 State v. Harper, 42 La. Ann. 312 134, State v. Harper, 58 Mo. 531 232 State v. Ilarrin-ton, 69 N. IT. 469 671 State v. Harris. 122 [owa 7s 81, 128 State v. Harris 64 [owa 287 680 State v. Harris. 36 Iowa L36 526,544,551 State v. Harris. 50 Minn. 128 150,153,164 State v. Bartwick, 49 Conn. 101 680 State v. Hatch. 94 Me. 58 648 State v. Harvey. I 1 Tex. Civ. App. 691 State v. Hawley, 25 Minn. 429 376 State v. Hawley, 65 Me. 100 501. 54?. State v. Haymond, 20 W. Va. 18 40 xc jj TABLE OF CASES. SECTIONS State v. Hazelton, 78 Vt, 467 47, 177 State v. Heard, 107 La. 60 659 State v. Heege, 37 Mo. App. 338 242, 248, 267 State v. Heitseh, 29 Minn. 134 642 State v. Hellman, 56 Conn. 190 120, 134 State v. Henthorn, 46 Kan. 613 632 State v. Hickerson, 3 Heisk 375 643 State v. Hickok, 90 Wis. 161 653 State v. Higgins, 84 Mo. App. 331 242, 271, 272 State v. Higgins, 71 Mo. App. 180 267 State v. Higgins, 13 R. I. 330 686 State v. Hinkel, 131 Wis. 103 204 State v. Hipp, 38 Ohio St. 199, 206 174,184 State v. Hirsch, 125 Ind. 207 117 State v. Hitchcock, 124 Mo. App. 101 382, 384 State v. Hitchcock, 68 N. H. 244 682 State v. Hoard, 123 Ind. 34 662 State v. Hoctor (Neb. 1909), 120 N. W. 199 220 State v. Hodgson, 66 Vt. 135 45 State v. Hoja, 60 Conn. 259 293 State v. Holder, 133 N. C. 709 651 State v. Holland (Me. 1908), 71 Atl. 1095 532 State v. Hollingsworth, 100 N. C. 535 374 State v. Holmes, 38 N. H. 225 187, 303 State v. Holt County Court, 39 Mo. 521 268 State v. Horacek, 41 Kan. 87 582 State v. Horton, 21 Oreg. 83 186, 187, 303 State v. Howorth, 70 Iowa 157 667 State v. Hoxsie, 15 R. I. 1 6S2 State v. Hudson, 78 Mo. 302 189 State v. Huff, 76 Iowa 200 •• 669 State v. Hughes, 24 Mo. 147 289 State v. Hughes, 16 R. I. 403 5 State v. Humphrey, 40 Mo. App. 327 644 State v. Hunt, 29 Kan. 762 291 State v. Huntley, 29 Mo. App. 278 230 State v. Hutchinson, 72 Iowa 561 30 State v. Ilgner, (Kan. 1910) 105 Pac. 14 628 State v. Ingalls, 59 N. H. 88 658 State v. Intoxicating Liquors, 109 Iowa 145 549 State v. Intoxicating Liquors, 40 Iowa 95 546 State v. Intoxicating Liquors, 98 Me. 464 511, 552 State v. Intoxicating Liquors, 85 Me. 304 501 State v. Intoxicating Liquors, 80 Me. 91 547 State v. Intoxicating Liquors, 80 Me. 57 683 State v. Intoxicating Liquors, 73 Me. 278 511 State v. Intoxicating Liquors, 69 Me. 524 551 State v. Intoxicating Liquors, 63 Me. 121 506, 508 State v. Intoxicating Liquors, 61 Me. 520 551 TABLE OF CArfES. xciii 8E("I i State v. Intoxicating Liquors, 50 Me. 506 506 State v. Intoxicating Liquors (State v. Jabbour), 72 Vt. 22 State v. Intoxicating Liquors, 58 Vt. 594 531, 551 Slate v. Intoxicating Liquors, 55 Vt. 82 500 State v. Intoxicating Liquors, 44 Vt. 208 517, 528, 537 State v. Intoxicating Liquors, 44 Vt. 258 683 State v. Intoxicating Liquors (Vt. 1909), 73 Atl. 586 498, 537, 545, 546 State v. Irine, 3 Heisk (Tenn.) 155 650 State v. Isabel, 40 La. Ann. 340 224 State v. Jackson, 105 La. 436 378 State v. Jaeger 63 Mo. 403 178. State v. Jaques, 68 Mo. 260 664 State v. Jeffcoat, 54 S. C. 196 643 State v. Jenkins, 32 Kan. 477 21 State v. Jepsin, 76 Kan. 644 617 State v. Johnson, 86 Minn. 121 370, 386 State v. Johnson, 72 Miss 896 562 State v. Johnson 37 Neb. 362 324 State v. Johnson 33 N. H. 441 301 State v. Joyner, 81 N. C. 534 100 State v. Kane, 15 R. I. 395 79 State v. Kantler, 33 Minn 69 149, 229 State v. Kapiesky (Me. 1909), 73 Atl. 830 585 State v. Kaso, 25 Neb. 607 241, 286 State v. Kaufman 75 Mo. App. 188 391 State v. Kaufman, 45 Mo. App. 656 391 State v. Keaough, 68 Wis. 135 175 State v. Kein, 34 Wis. 500 664 State v. Keith, 37 Ark. 96 291 State v. Kellogg (Mo. 1908), 113 S. W. 660 382, 386, 395 State v. Kellogg, 95 Wis. 672 324 State v. Kennedy, 1 Ala. 31 278 State v. Kennedy, 98 N. C. 657 178 S< ate v. Kennedy, 36 Vt. 563 656 State v. Kezer, 74 Vt. 50 38, 39 State v. Kibling, 63 Vt. 636, 645 6, 67. 671 State v. Kiefer, 90 Md. 165 6 7 State v. King, 37 Iowa 462 J 134, 666 State v. Kline, 26 Fed. 515 510 State v. Kline, 50 Oreg. 426 597 State v. Knotts, 24 Ind. App. 477 4:27 State v. Knowlton, 70 Me. 200 527 State v. Koch, 61 Mo. 117 659 State v. Kolb, 48 Mo. App. 269 677 State v. Kriechbaum, 81 Iowa 633 686 State v. Krinski, 7s Vt. 162 39, 682 State v. Knit/. 64 Mo. App. 123 66S State v. Kuhn, 24 La Ann. 474 64:: State v. Laborde, 119 La. 410 376. 37S XC1V TABLE OF CASES. State v. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. SECTIONS Laft'er, 3S Iowa 422 38 Lager Beer, 70 N. H. 454 524 Lager Beer, 68 N. H. 377 10 Lamos, 26 Me. 258 324 Lane, 33 Me. 536, 537 637, 638 Lang, 63 Me. 215 543, 665, 666 Langton, 29 Minn. 393 151 Lautz, 90 Mo. App. 15 677 Larson, 83 Minn. 124 348 Lawler, 85 Iowa. 564 622 Leach, 17 Ind. App. 174 355 Leach, 38 Me. 432 533 Learned, 47 Me. 426 550 Leavenworth, 36 Kan. 31 210 Le Clair, 86 Me. 522 498, 532 Lemp, 16 Mo. 389 10 Lemp Brewing Co., (Kan. 1909) 102 Pac. 504 59 Leonard, (Kans. City C.A. 1909) 116 S. W. 14 243, 276, 289 Lewis, 123 La. — 49 So. 167 190 Lewis, 86 Minn. 174 672 Lichta, 130 Mo. App. 284 305, 324, 329 Lillard, 78 Mo. 136 38 Lincoln, 73 Vt. 221 627 Lisles, 58 Mo. 359 642 Liquor, Drew. 38 Vt. 387 527 Lockyear, 95 N. C. 633 596 Looker, 54 Kan. 227 662 Lovell, 47 Vt. 493 83 Lowry, 74 N. C. 121 35 Ludington, 33 Wis. 107, 115 77, 78, 81, 82, 83, 324, 420 Ludwig, 21 Minn. 202 134, 164 Lydick, 11 Neb. 366 298 Lynch, 72 N. H. 185 624 Lynch, 81 Ohio St.— 55 Ohio Law Bull. Supp. 75 377 Mackin, 51 Mo. App. 299 403, 406 Madeira, 125 Mo. App. 508 677, 679 Madison (S. D. 1909), 122 N. W. 647 539, 550 Mann (Ind. A. C. 1909), 86 N. E. 976 445 Manning, 87 Mo. App. 78 638 Marion, 14 Mont. 458 665 Markuson, 7 N. D. 155 516, 527, 632 Markuson, 5 N. D. 147 632 Marley, 78 Conn. 339 99 Marsh, 37 Ark. 356 47, 179 Marston, 64 N. H. 603 625 Marchhanks. 61 S. C. 17 672 Martin, Tit Ark. 340, 341 17, 742 Martin, 55 Fla. 538 271 Martin. 3 TTeisk. (Tenn.) 487 131 TABLE OF < AM.-. x.-v SECTIONS State v. Martland, 71 Iowa, 543 364 State v. Maryland Club, 105 Md. 585 586 State v. Massey, 72 Vt. 210 620,621 State v. Mather, 94 Iowa 42 249 State v. Mattle, 48 La. Ann. 728 45 State v. Maueke, 18 S. C. 81 289 State v. May, 52 Kan. 53 21 State v. May, 45 S. C. 512 643 State v. McAdams, 106 La. 720 232 Stale v. McAnally (Mo. App. 1910), 125 S. W. 1174 372 State v. McCanee, 110 Mo. 398 681 State v. McCann, 59 Me. 383 532 State v. McCann, 61 Me. 116 540 State v. McCleary, 17 Iowa, 44 84 State v. McCofferty, 63 Me. 223 20 State v. McConnell, 90 Iowa, 197 295, 672 State v. McCord, 207 Mo. 519 382, 385 State v. McEntee, 68 Iowa 381 70, 122, 557 State v. MeGahey, 12 N. D. 535 518 State v. McGinnis, 30 Minn. 48 642 State v. McGinnis, 14 Mont. 462 665 State v. McGlynn, 34 N. H. 422 682, 686 State v. McGough, 14 R I. 63 ". 661, 662 State v. McGregor, 88 Minn. 74 160 State v. Mcllvenna, 21 S. D. 489 226, 279 State v. McKenna, 16 E. I. 398 9, 674 State v. McManus, 65 Kan. 720 503, 516, 544, 545, 547 State v. McMaster, 13 N. D. 58 545 State v. McNally, 34 Me. 210 538 State v. McNamara, 69 Me. 133 30 State v. McNeary, 88 Mo. 143 229 State v. McNett, 5 Penn. (Del.) 334 178, 298, 302 State v. Mead's Liquors, 46 Conn. 22 550 State v. Mellor, 13 K. I. 666 611, 683 State v. Mercer, 32 Iowa 405 581 State v. Mercer, 58 Iowa 1S2 124, 642 State v. Metealf, 18 Neb. 431 265 State v. Midgett, 85 N. C. 538 676 State v. Millard, 39 Mo. App. 251 218, 232, 233 State v. Miller, 48 Me. 57G 498, 533, 537 State v. Miller, (Mo. App. 190S) 108 S. W. 603 272 State v. Miller, 44 \V. Va. 385 340 State v. Milwaukee. 129 Wis. 562 220 State v. Minnehan, 83 Me. 310 527 State v. Minnesota (Minn. 1909) 119 N. W. 494 15, 589 State v Mitchell (Mo. 1908) 115 S. W. 1098 389 State v. Mitchell, 127 Mo. App. 455 278 State v. Momberg, 14 N. D. 291 683 State v. Monger, 111 N. C. 675 193 xcvi TABLE OF CASES. SECTIONS State v. Monteau County Court, 45 Mo. App. 387 237, 242 State v. Moore, 107 Mo. 78 372 State v. Moore, 5 Blackf. (Ind.) 118 35 State v. Moran, 40 Me. 129 646 State v. Moran, 46 Wash. 596 21 State v. Morehead, 22 R. I. 272 24, 25 State v. Morin, 102 Me. 290 683 State v. Moseli, 49 Kan. 142 643 State v. Mueller, 38 Minn. 497 687 State v. Mullenhoff, 74 Iowa 271 18 1 ?, 192 State v. Mullins, 67 Ark. 422 664 State v. Mulloy, 111 Mo. App. 679 267 State v. Muncey, 28 W. Va. 494 38 State v. Muneh, 57 Mo. App. 207 683 State v. Munger, 15 Vt. 290 4, 8, 643, 651 State v. Munson, 25 Ohio St. 381 377 State v. Murgler, 29 Kan. 252 83 State v. Murphy, 23 Nev. 390 34 State v. Murphy, 71 Vt, 127 632 State v. Neeper, 3 G. Greene (Iowa) 337 225 State v. Neibovig, 33 Minn. 480 651 State v. Neis, 108 N. C. 787 596 State v. Nelson, 10 Ida. 522 16 2 State v. New Charleston Hotel Co. 80 S. C. 120 621 State v. Newcomb, 107 N. C. 900 242, 277 State v. New Orleans, 113 La. 371 78, 82, 226, 271 State v. Nippert, 74 Kan. 371 683 State v. Noel, 73 Iowa, 682 561 State v. Nolan, 37 Minn. 16 218 State v. Northfield, 41 Minn. 211 321 State v. Nulty, 57 Vt. 543 686 State v. O'Brien, 35 Mont. 482 411, 417, 41S State v. O'Connell, 82 Me. 30 683 State v. O'Connor, 58 Minn. 193 303 State v. Odam, 2 Lea. 220 654 State v. O'Keefe, 41 Vt. 691 656 State v. Oliphant, 128 Mo. App. 252 411 • v. Oliver, 26 W. Va. 422 2S State v. Olson, 38 Minn. 150 670 State v. O'Malley, 132 Iowa 696 685, 688 te v. O'Neal, (N. I). 1909) 124 N. W. 68 676 Stat.- v. O'Neil, 58 Vt. 140 498, 513, 531, 534, 570 State v. Orth, 38 Minn. 150 117 State v. Owen, 15 Mo. 500 15 State v. Packer, so N. ('.. 439 36 State v. Packett (Kans. City C. A. 1909) 119 S. W. 25 272 State v. Page, 66 Me. 418 36 State v. Parker, 26 Vt. 357 368 State v. Parnell, 16 Ark. 506 643 TABLE OF CASKS. xcv ji SECTIONS State v. Partlow, 91 N. C. 550 104 State v. Pate, 67 Mo. 488 289 State v. Patner, 44 Kan. 429 637 State v. Patterson, 13 N. D. 70 518 State v. Paul, 5 R. I. 185 46, 611 State v. Pearse, 31 Neb. 562 271 State v. Peiree, 26 Kan. 777 350 State v. Pennell, 101 Me. 161 505 State v. Perkins, 26 N. H. 9 72 State v. Peters, 91 Me. 31 511 State v. Peterson, 38 Minn. 143 653, 670 State v. Pfeifer, 26 Minn. 175 218 State v. Piche, 98 Me. 348 674 State v. Pillsbury, 47 Me. 449 648 State v. Pittman, 10 Kan. 593 232, 651 State v. Pittman, 76 Mo. 56 647 State v. Pitzer, 23 Kan. 250 651 State v. Plamondon, 75 Kan. 269 634 State v. Plunkett, 64 Me. 534 539 State v. Police Jury, 116 La. 767 276 State v. Police Jury, 120 La. 163 216 State v. Pond, 93 Mo. 606 368, 370, 371 State v. Poull, 14 N. D. 557 655 State v. Powell, 3 Lea. (Tenn.) 164 650 State v. Prats, 10 La. 785 225 State v. Pratt, 34 Vt. 323 672 State v. Prescott, 67 N. H. 203 661 State v. Pressman, 103 Iowa, 449 218 State v. Price, 75 Iowa, 242 662 State v. Priester, 43 Minn. 373 222 State v. Pritchard, 16 S. D. 166 8 State v. Probst, 87 N. C. 560 232 State v. Putnam, 38 Me. 296 98 State v. Quinn, 40 Mo. App. 573 688 State v. Rathsack (Neb. 190S), 117 N. W. 949 265 State v. Uaymond, 24 Conn. 204 680 State v. Reick, 43 Kan. 279 677 State v. Reid (Mo. 1908) 114 S. W. 1116 391 State v. Reno, 11 Kan. 674 655 State v. Reynolds, 14 Mont. 383 113, 114, 115 State v. Reyman, 4S W. Va. 307 617 State v. Richardson, 48 Oreg. 309 123 State v. Rincke (Mo. App. 1909) 121 S. W. 159 372, 391, 396 State v. Roach. 7:, Me. 125 30 te v. Roach. 74 Me. 562 507, 550 State v. Roberts, 74 X. H. 476 65, 75, 76, 190 State v. Kobinson, 49 Me. 285 521 State v. Robinson, 33 Me. 564 524, 527, 550 State v. Robinson. 61 S. C. 106 674 xcviii TABLE OF CASES. SECTIONS State v. Rochm, 61 Mo. 82 659 State v. Rogers, 39 Mo. 431 643, 675 State v. Roller, 77 Mo. 120 124 State v. Roney, 133 Iowa, 416 106 State v. Ruferty, 70 Iowa, 16 667 State v. Runyan, 26 Mo. 167 642 State v. Rush, 13 R. I. 198 25 State v. Rushing, 140 Ala. 187 151 State v. Russell, 131 Mo. App. 638 282 S1 ate v. Ryan, 81 Me. 107 661 State v. Santo, 2 Iowa 165, 212 527 State v. Sannernid, 38 Minn. 229 670 State v. Sartori, 55 Iowa 340 680 State v Saunders, 66 N. H. 39 612, 625, 629 State v. Scampini, 77 Vt. 92 368, 653, 662 State v. Schaef er, 44 Kan. 90 29 State v. Schroff, 123 Wis. 98 304 State v. Schiverter, 27 Kan. 499 670 State v. Schmail, 25 Minn. 368 643 State v. Schmid, 57 N. J. L. 625 638 State v. Schmidt, 34 Kan. 339 670 State v. Schmidtz, 65 Iowa, 556 310 State v. Schneickardt, 109 Mo. 496 145, 615 State v. Schneiter, 21 Kan. 449 643 State v. Schoenthaler, 63 Kan. 148 671 State v. Schreber, 98 Ind. 184 653 State v. Schreinin, 86 Minn. 253 339 State v. Schroeder, 51 Iowa 197 100 State v. Schuler, 109 Iowa, 111 665 State v. Schumlbach Brewing- Co. 56 W. Va. 333 178 State v. Scott, 96 Mo. App. 620 237, 248 State v. Searcy, 20 Mo. 489 190 State v. Searcy, 111 Mo. 236 368 State v. Searcy, 39 Mo. App. 393 396, 419 State v. Seattle, 31 Wash. 149 182 State v. Seilert, 97 Mo. App. 212 242, 243, 267 State v. Settles, 34 Mont. 448 82, 268 State v. Shank, 74 Iowa, 649 682 Stat e v. Sharpe, 119 Mo. App. 386 128 St ate v. Shaw, 32 Me. 570 339 Stat.- v. Shaw, 58 N. H. 72 126 State v. Shelton, 38 Ind. App. 80 117 State v. Sh.-lton, 16 Wash. 590 669, 686 State v. Sheppard, 64 Kan. 451 672 State v. Shinn, 63 Kan. 638 642, 644 Stat.- v. Shumate, 44 W. Va. 490 604 Stat.- v. Simmurs, 142 Mo. 586 131 State v. Sinks, 42 Ohio St. 345 174 State v. Sioux Falls Brewing Co. 5 S. D. 39 22 TABLE OF CASES. X( j x SECTIONS State v. SkeggS, (Ala. 1908) 46 So. 268 62 State v. Smiley, L01 N. C. 709 374, 376 State \. Small, 31 Mo. 197 677 State v. Smith. 7 1 Iowa 580 669 State v. Smith, 64 Me. 423 561 State v. Smith, 5 t M<-. 33 551 State v. Smith, 38 Mo. App. 618 382 State v. Smith, 126 N. C. 1057 72 State v. Snow, 117 N. C. 774 74, 100, 104 State v. Snow, 3 R. I. 64 499, 527, 551 State v. Sodini, 84 Minn. 444 679, 687 State v. Solio, 4 Penn. (Del.) 138 637, 638 State v. Sorrell, 98 N. C. 738 686 State v. South Omaha, 33 Neb. 876 252 State v. Spaulding-, 61 Vt. 505 30 State v. Spirituous Liquors, 68 N. H. 47 525 State v. Spokane Falls, 2 Wash. 40 225 State v. Stafford, 67 Me. 125 621 State v. Stakke (S. D. 1908) 118 N. W. 703 386 State v. Stamey, 71 N. C. 202 643, 660 State v. Stanley, 84 Me. 555 661 State v. Stanton, 37 Conn. 421 131 State v. Staples, 45 Me. 320 648 State v. Staples, 37 Me. 228 538 State v. Stark, 63 Kan. 529 609 State v. Starr, 67 Me. 242 12 State v. State, 114 Ga. 439 643 State v. State, 24 Mo. 530 15 State v. Stephens, 70 Mo. App. 554 686 State v. Stevens, 47 Me. 357 543 Stale v. Stevens, 114 N. C. 873 84, 204 State v. Stiff, 104 Mo. App. 685 271 State v. St. Louis Club, 125 Mo. 308 591 State v. Stoffels, 89 Minn. 205, 209 498, 520, 550 State v. Stovall, 103 N. C. 416 103 State v. Stover, 111 La. 92 677 State v. Strauss, 49 Md. 288 165 State v. Striekford, 70 N. IT. 297 629 State v. Stroschein, 99 Minn. 248, 251 65, 76 State v. Stucker, 58 Iowa 490 47, L79 Stale v. Suiter, 78 Vt. 391 682 State v. Superior Court, 50 Wash. 650 304 Slate v. Sutton, 100 N. C. 474 71 State v. Swallum, 111 Iowa. 37 128 State v. Swearm^en, 128 Mo. App. 005 391, 397. 411 State v. Swift, 35 W. Va. 542 State v. Tanner, 50 Kan. 365 668 State v. Teahon, 50 Conn. 92 683 State v. Teissedre, 30 Kan. 477 21 c TABLE OF CASES. SECTIONS State ex rel. Borough v. Terheide, 166 Ind. 689 436 State v. Terry, 73 N. Y. 554 686 State v. Thomas, 74 Kan. 360 632 State v. Thomas, 118 N. C. 1221 168 State v. Thomas, 7 Rich. L. (S. C.) 481 642 State v. Thompson, 74 Iowa, 119 556, 669 State v. Thompson, 44 Iowa, 399 522, 529 State v. Thompson, 20 W. Va. 674 7 State v. Thornburg, 16 S. C. 482 ... . 68 State v. Thornburn, 75 Vt. 18 30 State v. Tisdale, 54 Minn. 105 26 State v. Topeka, City of, 31 Kan. 452 204 State v. Topeka, City of, 30 Kan. 653 210 State v. Tucker, 45 Ark. 55 229 State v. Tucker, 32 Mo. App. 620 391 State v. Tullock, 108 Mo. App. 32 242 State v. Turner, 210 Mo. 77 194, 271 State v. Turner, (Mo. App. 1910) 125 S. W. 531 372, 392 State v. Turner, 18 S. C. 103, 106 121 State v. Union Social Club, 82 S. C. 142 622 State v. United States Express Co. 70 Iowa 271 510 State v. Van Vliet, 92 Iowa, 476 418, 608, 663 State v. Viers, 82 Iowa, 397 611 State v. Village Council (Minn. 1909) 120 N. W. 894 329 Smith v. Village of Adrian, 1 Mich. 495 570 State v. Vinson, 5 Tex. Cr. App. 315 364 State v. Voight, 90 N. C. 741 277 State v Volkman, 20 La. Ann. 585 173 State v. Volmer, 6 Kan. 371 , 5, 21. 25 State v. Wadsworth, 30 Conn. 55 4, 10 State v. Waite, 72 Vt. 108 30 State v. Walker, 3 Harr. 547 643 State v. Walker, 56 N. H. 176 363 State v. Walker, 16 Me. 241 293 Stokes v. Wall, 112 Ga. 349 275 State v. Wambold, 74 Iowa 605 671 State v. Ward, 75 Iowa, 641 556 State v. Warnke, 48 Mo. 451 562 State v. Washington, 44 N. J. L. 605 166 State v. Watts, 111 Mo. 554 368 State v. Watts, 101 Mo. App. 658 10 State v. Wnusan, 137 Wis. 311 310. 328, 337 State v. Weber, 20 Neb. 467 248, 249, 265, 286 Stnte v. Weeks, 67 Me. 60 98 State v. Weeks. 38 Mo. App. 566 382, 410 State v. Weir, 33 Iowa 134 371 State v. Welch, 36 Conn. 215 152, 153, 166 State v. Welch, 78 Me. 99 518 State v. Wells, 28 Mo. 565 202 TABLE OF CASES. ci SECTIONS State v. Wenzel, 72 N. H. 396 388 State v. Whalen, 85 Me. 469 517, State v. Wharton, 26 Tex. Civ. App. 262 344 State \. Wheeler, 25 Conn. 290 47, 83, 498, 516 State v. Whipple, 57 Vt. 637 State v. Whiskey, 54 N. H. 164 State v. White, 23 Ark. 275 230 State v. While, 115 La. 779 218 State v. Whitener, 23 Ind. 124 340 State v. Wilcox, 42 Conn. 364 386 Stale v. Williams, 143 Ala. 501 271 State v. Williams, 90 Iowa 513 621, 627 State v. Williams, (Ind. S. C. 1910), 90 N. E. 754 303, 372 State v. Williams, 38 Mo. App. 37 372 State v. Williams, 11 S. D. 64 643 State v. Williams, 10 Tex. Civ. App. 346 363 State v. Williamson, 21 Mo. 496 34 State v. Wilson, 80 Mo. 303 38 State v. Wingfield, 115 Mo. 426, 428 368, 510, 643 State v. Winson, 5 Tex. Civ. App. 315 348 State v. Wise, 70 Minn. 99 H'~ State v. Witt, 39 Ark. 216 17 State v. Witter, 107 N. C. 792 151 State v. Wittmar, 12 Mo. 407 9 State v. Woods, 68 Me. 409 539, 553 State v. Woodward, 34 Me. 293 686 State v. W T ooley, 59 Vt. 357 637 State v. W'right, 98 Iowa, 702 672 State v. Wright, 68 N. H. 351 676 State v. Yewell, 63 Md. 120 65, 72, 374 State v. Zimmerman, 78 Iowa 614 682 State v. Zeitler, 63 Ind. 441 656 State v. Zermucklen, 110 Iowa 1 295 Steelier v. People, 217 111. 348 493 Steele v. State, 19 Tex. App. 425 368, 382, 383 Steele v. Thompson, 42 Mich. 594 435, 448 Steffy v. Town of Monroe City, 135 Ind. 406 159 St eg marie Brewing Co.'s License, 11 Pa. St. Dist. R. 691 310 si, inberger v. Stat. . :;:. Tex. Cr. 492 660 Steinkuhler v. State, 77 Neb. 331 682 Stella v. Stat.-. 77 Ark. 441 ." 677, 680 Stephens v. Henderson, 120 Ga. 218 Stephen Es parte, 114 Cal. 278 203 Stevens \. State, 61 Ohio St. 597 Stevenson v. Hunter. 5 Ohio Dee. 27 173. 174 Stewart v. Waterloo Turn Yerein. 71 Iowa 226 559, 561, 565 Stewart, In re, 61 Cal. 375 203 Steyer v. McCauley, 102 Eowa 105 619 Stickland v. Bartow. 27 Mich. 68 558 c jj TABLE OF CASES. SECTIONS Stickland v. Knight, 47 Fla. 327 277 Stickrod v. Commonwealth, S6 Ky. 285 81, 83, 121, 371, 386 Stinson v. Gardner, 97 Tex. 287 400 St. Louis v. Smith, 2 Mo. 113 209 St. Louis v. Weber, 44 Mo. 550 142 St Louis v. Siegrist, 46 Mo. 593 234 St, Louis, City of, v. Smith, 2 Mo. 113 209 St. Louis Southwestern Ky. Co. v. Cans, 69 Ark. 252 508 Stickwell v. Brant, 97 Ind. 474 264 Stokes v. Schlachter, 66 N. J. L. 247 207 Stokes v. Wall, 112 Ga. 349 275 Stomml v. Timbrel, 84 Iowa 336 84 Storms v. Commonwealth, 105 Ky. 619 196 Storms v. Commonwealth, 20 Ky. Law 1434 202 Stoss v. State, 3 Mo. 9 666 Stout v. State, 96 Ind. 407 21 Stout v. State, 93 Ind. 150 666 Strahn v. Hamilton, 38 Ind. 57 298 Straub v. Gordon, 27 Ark. 625 173, 198 Strauss v. City of Galesburg, 203 111. 234 156, 169, 206 Strauss v. Town of Pontiac, 40 111. 301 134, 144, 146 Streeter v. People, 69 111. 595 204, 610 Streever v. Birch, 62 Hun (N. Y.) 298 470 Struble v. Nodwift, 11 Ind. 64 457, 465, 661 Sublett Ex parte, 23 Tex. App. 309 386 Sullivan v. Conrad, 79 Neb. 660 434 Sullivan v. Oneida, City of, 61 111. 242 135, 498 Sullivan v. People, 15 111. 233 207 Sullivan v. Radzuweit (Neb. 1908), 118 N. W. 371 364, 460 Sullivan, Matter of, 30 Misc. R. (N. Y.) 682 397 Summas' License, 12 Pa, Co. Ct. R. 667 300 Susquehanna County Licenses, 3 Pa. Co. Ct. R. 616 268 Sutherland v. McKinney, 146 Ind. 611 263 Sutter v. Fauble, 25 Hun (N. Y.) 195 559 Sutton v. Head, 86 Ky. 156 623 Swan v. Wilderson, 10 Okla. 547 260, 278, 324 Swan, In re, 150 U. S. 637 540 Swann, Ex parte, 96 Mo. 44 45, 368, 369, 370, 371, 372, 375 Swarth v. People, 109 111. 621 223, 267 Sweeney v. Webb, 33 Tex. Civ. App. 324 368, 370, 386 Sweet v. Wabash, City of, 41 Ind. 7 138, 216, 554 Swi ft v. Klein, 163 111. 269 158 Swift v. People, 162 111. 534 194 Swinfin v. Lowry, 37 Minn. 345 497 Taber v. City of New Bedford, 177 Mass. 197 281 Tabor v. Lander, 94 Ky. 237 204 TABLE OF CASES. ( jii SECTIONS Tally v. Grider, 66 Ala. 119 383 Tanner v. Bugg, 74 M<>. App. L96 244, Tarrall v. State, 32 Ala. 557 685 Tatum v. State, 79 Ga. 17G 375 Tatum v. Trenton, Town of, 85 Ga. 408 199 Taxation Des Moines Ry. Co., In re, 137 Iowa 730 180 Taylor v. Carroll, 145 Mass. 95 445, 493 Taylor v. Felsing, 164 111. 331 459 Taylor v. State, 49 Ind. 555 686 Taylor v. Stott, 44 Tex. Cr. App. 437 674 Taylor v. Vincent, 12 Lea. (Tenn.) 282 178 Taylor v. Wright, 126 Pa. St, 617 439 Temmick v. Owing, 70 Md. 246 376 Teney v. State, (Tex. Cr. 1909) 117 S. W. 801 413 Tennant v. Krehlemeier (Iowa 1909), 120 N. W. 689 69 Tennessee Club v. Dwyer, 11 Lea (Tenn.) 452 600 Tennessee Club v. , 7 Lea. (Tenn.) 291 600 Territory v. O'Connor, 5 Dak. 397 369, 370, 371 Territory v. Robertson, 19 Okla. 149 16, 156, 210, 226 Territory of Arizona v. Connell, 2 Ariz. 339 81 Territory of Oklahoma v. City of Oklahoma. 19 Okla. 149 615 Terry v. State, 44 Tex. Cr. 411 674 Tharpe v. State, 89 Ga. 748 674 Theisen v. Johns, 72 Mich. 285 448 Theisen, Ex parte, 30 Fla. 529 157 Theis's Case, 6 Pa. C. Ct. R. 396 300 Theurer v. People, 211 111. 296 250, 254, 255 Thill v. Pohlman, 76 Iowa 638 473, 490 Thoma, In re, 117 Iowa, 275 285 Thomas v. Abbott, 105 Mich. 687 405, 417 Thomas v. Commonwealth, 90 Va. 92 26, 390, 418 Thomas v. Dansby, 74 Mich. 398 474, 481, 486 Thomas v. Hinkley, 19 Neb. 324 342, 347, 364 Thomas v. Markbreit, 31 Ohio C. C. 335 381 Thomas v. Saunders (Fla. 1908), 47 So. 796 104, 100, 167 Thomas v. State, 37 Miss. 353 686 Thomas, Appeal of, 169 Pa. St. Ill 270 Thomas, Petitioner, In re, 53 Kan. 659 143 Thomasson v. State. 70 Ala. 20 202 Thomasson v. State, 15 Ind. 449 113, 1S9, 201 Thompson v. Bassett, Ind. 535 341 Thompson v. City of Mount Vernon, 11 Ohio St. 688 145 Thompson v Eagan, 70 Neb. 109 24S, 252 Thompson v. ffiatt, 145 Ind. 530 204 Thompson v. Kock, 98 Ky. 400 274 Thompson v. State, 37 Ark. 408 646 Thompson v State, 37 Ala. 151 293 Thompson, In re (Neb. 1909), 120 N. W. 952 249, 265 Thorn v. City of Atlanta, 77 Ga. 661 280 c \y TABLE OF CASES. SECTIONS Thornton v Territory, 3 Wash. T. 482 134, 204 Thorpe v. R. & B. R. Co., 27 Vt. 140 81 Throckmorton v. State, 20 Ky. Law Rep. 1508 683 Thurman v. State, 43 Tex. Cr. 569 656 Thurmond v. State, 46 Tex. Cr. 162 388 Thurston v. Adams, 41 Me. 419 538 Tibbits v. Burster, 76 Iowa, 176 626 Tierney, Application, In re, 71 Neb. 704 280 Tierney's License, 11 Pa. Co. Ct. R. 406 310 Tigner v. State, 119 Ga. 114 663 Tilbery v. State, 10 Lea. 35 667 Tilf ord v. State, 109 Ind. 359 125 Timm v. Harrison, 109 111. 593 177 Tinker's Case, 90 Ala. 647 12 Tinker v. State, 90 Ala. 649 24 Tipton v. State, 156 111. 241 121 Tipton v. Thompson, 21 Tex. Civ. App. 143 423 Toman v. Westfield, 70 N. J. L. 610 330 Tonella v. State, 4 Tex. App. 325 173 Toole v. State, 88 Ala. 158 408 Topeka, City of, v. Raynor, 61 Kan. 10 613 Topeka, City of, v. Zufall, 40 Kan. 47 28 Toppiano v. Speed, 199 U. S. 501 54 Tousey v. DeHuy, 23 Ky. Law Rep. 458 388 Tousey v. Stites, 23 Ky. Law Rep. 1738 378 Townsend, Matter of, 195 N. Y. 214 256, 259 Town of Britton v. Guy, 17 S. D. 588 624 Town of Flora v. Lee, 5 III. App. 629 557 Town Council v. Harbus, 6 Rich. L. (S. C.) 96 355 Tracy v. Ginzberg, 189 Mass. 260 298 Trageser v. Gray, 73 Ind. 250 201 Trainor v. County of Multnomah, 2 Oreg. 214 199 Treahey v. Holliday, 43 Kan. 29 124 Trieberg v. State, 94 Ala. 91 685 Tripp v. Flanigan, 10 R. I. 128 353 Tripp v. Norton, 10 R. I. 125 349, 364 Tron v. Lewis, 31 Ind. App. 178 615 Tross v. Board of Excise, 59 N. J. L. 97 226 Truesdale v. State, 42 Tex. Cr. 544 387, 409 Trustees of Clintonville v. Keeting, 4 Den. (X. Y.) 341 207 Tuck v. Town of Waldron, 31 Ark. 462 138 Tupelo v. Beard, 56 Miss. 532 199, 225 Turner v. Johnson, 7 Dana. (Ky.) 435 623 Turner v. Mayor, 78 Ga. 683 135, 376 Tuttle v. Poechert (Iowa 1909), 121 N. W. 1057 380 u I'M rich v. Gilmore, 35 Neb. 288 340, 479 (Jlmer v. State, 61 Ala. 208 TABLE OF CASES. cv SECTIONS Ulrich's License, 6 Pa. Dist. R. 408 301 Underbill Matter, 17 Misc. R. (N. V.) 19 Unholtz's License, 191 Pa. St. 177 Uniontown v. State, 145 Ala. 471 90 United States v. Angell, 11 Fed. 34 302, United States v. Anthony. :M Fed. Cas. L4460 7 [Tinted States v. Ash, 75 Fed. 651, 652 34 United States v. Chevallier; 107 Fed. 434 510 United States v. Cohn, 2 Ind. Terr. 474 43 United States v. Commissioners, 6 Mackey 409 271 United States v. Davis, 37 Fed. 468 295 United States v. Ducournau, 54 Fed. 138 12, 19, 21 United States v. Four Bottles of Sour Mash Whisky, 90 Fed. 720 43 United States v. Giller, 54 Fed. 656 605 United States v. Halliday, 3 Wall (U. S.) 407 43 United States v. Martin, 14 Fed. 817 43 United States v. Nelson, 29 Fed. 202 686 United States v. Powers, 1 Alaska 180 293 United States v. Richards, 37 Wash. Law R. 450 272 United States v. Shriver, 23 Fed. 134 510 United States v. Stubblefield, 40 Fed. 454 40 United States v. Sulton, 165 Fed. 253. 43 United States v. Warwick, 51 Fed. 280 72 United States Distilling- Co. v. Chicago, 112 111. 19 214 Utsler v. Territory, 10 Okla. 643 671 Vaccarezzia, Ex parte, 52 Tex. Cr. 105 192 Vail, Matter of, 38 Misc. R. (N. Y.) 392 309 Vallance V. Everts, 3 Barb. (N. Y.) 553 569 Vance v. Vandercook Co., 170 U. S. 438 49, 54, 55, 56 Vanderlip v. Derly, 19 Neb. 165 260, 286 Van Hook v. City of Selma, 70 Ala. 361 142. 144, 204, 205 Van Northwick v. Bennett, 62 N. J. L. 151 249, 268 Van Tuyl, In re, 71 Kan. 639 148 Vaughan v. State (Tex. Cr. 1906), 93 S. W. 741 677 Veeder, Matter of, 31 Misc. R. (N. Y.) 569 251 Veon \. Creaton, 138 Pa. St. 48 423 Ver Si raeten v. Lewis' .1 udge, 77 Iowa, 130 Viefhaus v. State. 71 Ark. 419 104, Village of Altamont v. Baltimore & Ohio S. R. Co., 184 111. 47 213 Village of Cohoes v. Moran, 25 How. Pr. i N. Y.) 385 152 Village of Coulterville v. Gillen, 72 III. 399 208 Village of Mount l'leasanl v. Vansica, 43 Mich. 361 146, 210 Village of Platteville v. Bell, 43 Wis. 488 L66 Village of Sparta v. Boorom, 129 Mich. 535 72. 1 4 * » . 150 Vinson v. Town of Monticello, 118 Ind. 103 139 cv j TABLE OF CASES. SECTIONS Yoight v. Board of Excise, 59 N. J. L. 358 187, 317 Volans v. Owen, 74 N. Y. 526 487 Volans v. Owen, 9 Hun (N. Y.) 558 464 Yoltz v. Blackmar, 64 N. Y. 440-444 443 Yoss v. Terrell, 12 Tex. Civ. App. 439 391 w Wadill v. Common Council (Mich. 1909), 120 N. W. 355 382 Wadsworth v. Dunnam, 98 Ala. 610 3, 14, 38, 41 Wagner v. Hallock, 3 Colo. 176 510 Wagner v. Town of Garrett, 118 Ind. 114 155, 201, 219, 222, 232 Wakeman's Appeal, 50 Conn. 733 293 Wales v. City of Muscatine, 4 Iowa, 302 565 Walkaw v. Chicago, 217 111. 471 220 Walker v. Columbia City, 61 Ind. 24 212 Walker v. Darley, 101 111. App. 575 37 Walker v. McNelly, 121 Ga. 114 212, 624 Walker v. Mobley (Tex. 1907), 103 S. W. 490 397, 402 Walker v. People, 5 Colo. App. 40 114 Walker v. Prescott, 44 N. H. 511 18 Walker v. Shook, 49 Iowa, 264 540 Walker v. State, 52 Tex. Cr. 293 411 Walker's License, 24 Pa. Super. Ct. 90 244 Wall v. State, 10 Ind. App. 530 429, 492 Wall v. State, 78 Ala. 417 37, 39 Wall v. Tinsley, 107 Ky. 441 402 Wall. Ex parte, 48 Cal. 279 368, 371 Wallace v. Cubanola, 70 Ark. 395 216, 222 Wallace v. King, 3 Barb. (N. Y.) 548 375 Waller v. State, 38 Ark. 656 24 Walling v. Michigan, 116 U. S. 446 51, 59 Walser v. Kerrigan, 56 Ind. 301 457 Walsh's License, 208 Pa. St. 582 245 Walter v. State, 105 Ind. 589 193 Walters v. State, 5 Iowa 507 667 Walters, Ex parte, 65 Cal. 2G9 203 Walton v. City of Canon City, 14 Colo. App. 352 572 Wanack v. People, use of Alexander, 187 111. 116 440 Ward v Mayor, 8 Baxt. (Tenn.) 228 168 Ward v. State, 48 Ind. 293 2 Ward v. State, 2 Coldw. (Tenn.) 605 2S1 Ward v. Thompson, 48 Iowa 588 463, 481, 485 Ward Co. v. County Court, 51 W. Va. 102 190, 218 Wardell v. McConnell, 23 Neb. 150 435, 456, 492 Warren v. Englehart, 13 Neb. 283 494, 495 Warren v. Lawrence, 62 Mich. 251 343 Warrensburg v. McHugh, 122 Mo. 649 207, 368 TABLE OF (ASKS. evil 8! I TIO.VS Warren Street Chapel v. Excise Commissioners, 56 N. J. L. 411... 194, 278 Warrick v. Bounds, it Neb. 411 Wartelsky v. McGee, 10 Tex. Civ. App. 220 -*74 Warwick v. State, 48 Ark. 27 679 Washburn v. Mellroy, 7 Johns (N. Y.) 134 Washburn, Matter of, 32 Misc. B. (N. Y.) 303 Washington v. Johnson, 12 App. Cas. 545 271 Washington County Liquor Licenses, n Pa. Dist. Rep. 339 Wason v. Severance, 2 N. H. 501 Watkins v. Grieser, 11 Okla. 302 241, 252, 261, 205, 266, 2 i Watrous v. Allen, 57 Mich. 302 623 Watson v. State, 55 Ark. 158 24 Walts v. Commonwealth, 78 Ky. 329 191 Wat ts v. State, 120 Ga. 496 677 Waugh v. Graham, 47 Neb. 153 244, 20S, 276 Waverly, City of, v. Bremer County, 126 Iowa 98 182 Weaver's License, 20 Pa. Super. Ct. 95 Webb v. State, 11 Lea. (Tenn.) 662 178, I Webb City v. Parker, 103 Mo. App. 295 678 Webber v. Williams, 36 Me. 512 295 Webbs v. State, 4 Cold. (Tenn.) 199 366 Weber v. Wiggins, 11 Ohio Cir. Ct. 18 410 Webster v. Hall, 60 N. II. 7 501 Webster v. State, 110 Tenn. 491 45, 63, 81 Weil v. Calhoun, 25 Fed. 865 368 Weimer v. Bunbury, 30 Mich. 201 500 Weinandt v. State, 80 Neb. 161 682 Weir v. Allen, 47 Iowa 482 522 Weiser v. W T elsh, 112 Mich. 134 452, 47s, 491 Weiss-Chapman Drug- Co. v. People, 39 Colo. 374 554, 558, 567 Weitz v. Ewen, 50 Iowa, 34 454 Welch v. Mayor Council of Marion, 4s Ala. 291 199, 200 Welch v. Jugenheimer, 50 Iowa, 11 422, 434, 459, 480, 482 Wells v. Gueris, 126 Iowa, 340 632 Wells v. State, 118 Ga. 556 643 Wells v. Torrey, 144 Mich. 6S9 219 Welsh v. State, 126 Ind. 71 10, S3, 201, Wemeke v. State, 49 Ind. 202 653 Wenham v. Dodge, 98 Mass. 474 98 Wenner v. Bunbury, 30 Mich. 201 500 Wenner v. Edmiston, 24 Kan. 147 420, 435 Wcrstein v. Hoard of Suprs. (Mich. 1909). 120 X. W. 354 West v. Bishop, 110 Iowa, 410 1-7 West v. Corporate Authorities ot Grenville, :'•'.' Ala. 09 218 West v. Slate, 32 Ind. App. 101 074 West v. State, 35 Tex. Cr. 48 408 "West & Co. v. Board of Commissioners, 14 Ida. 353 70, 271 Westbrook v. Miller, !>s App. Div. (X. Y.) 590 4.->7 Westinghausen v. People, 4 4 Mich. 205 173 cv iii rABLE OF CASES. SECTIONS Weston v. Carr, 71 Me. 356 544 Weymire v. Wolf, 52 Iowa 533 496 Whalin v. City of Macomb, 76 111. 49 563 Wheaton v. King, 69 Ala. 356 295 Wheaton, Matter of, v. Slattery, 96 App. Div. (N. Y.) 102 625 Wheelin's Petition, 134 Pa. St. 554 241 Whisenhurt v. State, 18 Tex. App. 491 378 Whissen v. Furth, 73 Ark. 366 261, 268 White v. Atlantic City, 62 N. J. L. 644 275 White v. Creamer, 175 Mass. 567 313 White v. Prefogle, 146 Inch 64 263 White v. State, 80 Ark. 598 546 White, In re (Neb. 1909), 123 N. W. 1034 249 Whitlock v. Bartholomew, 91 Iowa 246 244 Whitney v. Township Board, 71 Mich. 234 103 Whittaker, Matter of, 63 App. Div. (N. Y.) 442 311 Whitten v. Mayor and Council of Coving-ton, 43 Ga. 421 219 Whittington, Ex part>, 34 Ark. 394 271 Whittlesey v. Acme Brewing Co., 127 Ga, 208 178 Wichita, City of, v. Murphy (Kan. 1908), 99 Pac. 272 148 Wiesel, In re, 173 Fed. 718 298 W T iese v. Gerndorf , 75 Neb. S26 435 Wightman v. Devere, 33 Wis. 570 465, 471, 473 Wightman v. State, 10 Ohio 452 153 Wigfon v. Bowley, 130 Mass. 252 511 Wilcox v. Bryant, 156 Ind. 379 278 Wiley v. Owens, 39 Ind. 429 204 Wilhelm, Application In re, 124 Iowa, 380 285 Wilkie v. Chicago, 188 111. 453 184 Wilier v. Dwyer, 69 Hun (N. Y.) 507 465 Williams v. Citizens, 40 Ark. 290 384 Williams v. City Council, 68 Ga. 816 199, 214 Williams v. Commissioners, 132 N. C. 300 176 Williams v. State, 47 Ark. 230 645 Williams v. State, 36 Ark. 430 685 Williams v. State, 107 Ga. 693 667 Williams v. State, 89 Ga. 483 643 Williams v. State, 53 Tex. Cr. 156 409 Williams v. State, 52 Tex. Cr. 371 71, 101, 157 Williams v. State, 35 Tex. Cr. 52 389 Williams v. Troop, 17 Wis. 403 292 Williamson v. State, 41 Tex. Cr. 461 651, 683 Willis v. Kalmback (1909), 64 S. E. 342 368 Wills v. State, :>,:>, Ind. 200 10, 18 Wilson v. Bohstedt, 135 Iowa 451 380 Wilson v. Hoot],, 57 Mich. 249 483 Wilson v. Commonwealth, 14 Bush. 159 643 Wilson v. Buses, 99 Ky. 221 386 Wilson v. Lawrence, 70 Ark. 545 368 TABLE OF CASES. cix SECTIONS Wilson v. Mathis, 145 Ind. 403 276 Wilson v. ROSS County Assessor, 40 W. Va. :.'T^ 280 Wilson v. Stale, :;:. Ark. 114 104, 307 Wilson v. Whelan, 91 (ia. 4G1 149 Wilson, In re, 32 Minn. 145 149, 156 Winans v. i'.ayonne, 44 N. J. L. 114 209, 223 Winona v. Whipple, 24 Minn. 61 204 Winn v. State, 43 Ark. 151 17 Winneconne v. Winneconne, 122 Wis. 349 182 Winston v. State, 32 Tex. Cr. 59 408 Winterton v. State, 65 Miss. 238 375 Winters v. State, 33 Tex. Cr. 395 601 Winton v. State, 77 Ark. 143 683 Wolcott v. Judge of Superior Court, 112 Mich. 311 339, 347 Wolf v. City of Lansing-, 53 Mich. 367 204 Wolf v. State, 59 Ark. 297 36 Wolf, Ex parte, 14 Neb. 24 166 Wolfe v. Johnson, 152 111. 280 490 Wolter v. State, 105 Ind. 589 72 Wood v. Brooklyn, City of, 14 Barb. (N. Y.) 425 145 Wood v. Lentz, 116 Mich. 275 435 Wood v. School Dist. (Neb. 1908), 115, 308 292 Wood v. Thomas, 38 Mich. 686 198 Woodford v. Hamilton, 139 Ind. 481 238 Woodlief v. State, 21 Tex. App. 412 378 Woodring v. Jacobino (Wash. 1909), 103 Pac. 809 432 Woods v. Barley, 211 111. 495 459 Woods v. Garvey (Neb. 190s), us X. W. 1114 159, 241 Woods v. Princeville, Town of, 19 Ore. 108 136, 662 Woods v. State, 52 Tex. Cr. 608 386 Woods v. State (Tex. Cr. App. 1903), 75 S. W. 37 653 Woods v. Varley (Garvey), (Neb. 1908), 118 X. W. 1114 159, 241 Woodward v. State, 103 Ga. 496 41? Wooldridge, In re, 30 Mo. App. 612 396 Woolkeather v. Risley, 38 Iowa 486 435.470. 479,481 Woolston, Matter of, 35 Misc. R. (N. Y.) 735 391 Wooster v. State, 6 Baxt. (Tenn.) 533 117 Worley v. Spurgeon, 38 Iowa, 465 36, 436 Wray v. Harrison, 116 Ga. 93 248 Wreidi v. State. 48 Ind. 579 688 Wright v. Mayor (Ga. 1900). 64 S. E. 807 138 Wright v. O.I'.rien, 98 Me. 196 614 Wright v. People. L01 111. 126 202 Wright v. Smith, 128 Ga. 432 448 Wright v. State, 37 Tex. Cr. 3 411 Wright v. State. 36 Tex. Cr. 35 408 Wright v. Tipton, 92 Tex. 168 423, 471 Wright v. Treat, S3 Mich. 110 362, 428, 457 Wyatt v. Ryan, 113 Ky. 306 385, 386 cx TABLE OF CASES. SECTIONS Wynhamer v. People, 13 N. Y. 378 190 Wynne v. Williamson, 94 Ga. 603 396 Y Yazoo City v. State, 48 Miss. 440 146 Yost v. Commonwealth, 6 Ky. Law Rep. 110 643 Young v. Beveridge, 81 Neb. 180 436, 492 Young v. Blaisdell, 138 Mass. 344 303, 322 Young v. Commonwealth, 14 Bush. 161 375 Youngblood v. Sexton, 32 Mich. 406 173, 174, 184 z Zanone v. Mound City, 103 111. 552 271 Zanone v. Mound City, 11 111. App. 334 270 Zavresseller v. People, 17 111. 101 193 Zielke v. State, 42 Neb. 750 196, 251 Zimmerman v. Smiley, 62 Neb. 204 492 Zinn v. State (Ark. 1908), 114 U. S. 227 60 Zunzon, Matter of, 18 Misc. R. (N. Y.) 653 257, 258, 259 Zumhoff v. State, 4 G. Greene (Iowa) 526 643, 662 LIQUORS. CHAPTER I. DEFINITIONS AND TERMS. Section 1. Construction of term " intoxicating liquors " — remarks generally. 2. " Liquor " defined. 3. " Intoxicating liquors " defined and considered. 4. Same subject — judicial notice. 5. Same subject — evidence to sliow character of. 6. Same subject — name immaterial. 7. " Spirituous liquors " defined and considered — " distilled spirits." 8. Same subject continued. 9. " Intoxicating liquors " — " spirituous liquors " — where statutes specify what are. 10. Same subject continued. 11. "Ardent spirits" defined. 12. " Malt liquor " defined. 13. " Vinous liquors " defined. 14. " Intoxication " defined. 15. " Dramshop " — " dramshop keeper " — " Saloon " defined. 16. " Tippling house " defined. Sec. 1. Construction of term ' ' intoxicating liquors ' ' remarks generally. The question as to what is included in, or meant by, the term " intoxicating liquors " is one upon which there is a decided lack of harmony, especially in the earlier decisions. As to some liquors, courts have substantially agreed that they are intoxicating and take judicial notice of the fact while as to others we find that the 1 o DEFINITIONS AND TERMS. [§ 2 decisions are directly in conflict and that while there is one line of decisions which hold that a certain liquor belongs to the general classification " intoxicating liquors " and take judicial cognizance of the fact there are others which hold as to the same liquor that the question whether it is intoxicating is one of fact for the jury. In later years, however, the determination of this question has been rendered less difficult owing to the fact that the legislatures in some of the states have defined what is meant by this term, and expressly enumerated the liquors which come within the operation of the statute. § 2. " Liquor " defined. The word " liquor " is a comprehensive one and in its broadest sense includes fluids which not only may be, drank as a beverage but those which, on the other hand, cannot be, or are not reason- ably liable to be, so used. Both intoxicating and non-intoxicating liquors are included within the meaning of this word. In its ordinary acceptation, however, it is generally understood as imply- ing those liquors which are of an intoxicating nature, that is such as are ordinarily used as a beverage and which tend to and will intoxicate. Thus liquor it is said, in its most comprehensive signification, implies fluid substances generally — such as water, milk, blood, sap, juice, but in a more limited sense and its common application it implies spirituous fluids, whether fermented or distilled, — such as brandy, whisky, rum, gin, beer and wine, and also decoctions, solutions, tinctures, and the like fluids in great variety. 1 So it has been declared in a recent case that the term " liquor " or " liquors " commonly includes all kinds of intoxicating decoc- 1. State v. Giersch, 98 N. C. 720, The Standard Dictionary defines 723, 4 S. E. 193. liquor as (1) Any alcoholic or in- See State v. Brittain, 89 N. C. 574, toxicating fluid, (5) a liquid of any 576, holding that the term " liquors " sort as water, milk or blood, generally implies spirituous liquors. 3] DEFINITIONS AND TERMS. 3 tions, liquids, or beverages whether spirituous, vinous, malt, or alcoholic. 2 But where an indictment charged the defendant with selling " liquors " and contained no averment that it was intoxicating the court held that it should have been quashed as the statute under which it was framed prohibited the sale of " intoxicating liquors " only. 3 § 3. " Intoxicating liquors " denned and considered. " Intoxicating liquors " reasonably construed means liquors which will intoxicate, and which are commonly used as beverages for such purpose, and also such mixtures of the same as, retaining their alcoholic qualities, may be used as a beverage and become a substitute for the ordinary intoxicating drinks. 4 Neither fer- 2. Marks v. State, (Ala. 1909), 48 So. 864. Per Mayfield, J. 3. Ward v. State, 48 Ind. 293. 4. Roberts v. State, 4 Ga. App. 207, 60 S. E. 1082. The term " intoxicating liquors " has been held to include those bitters, beverages or decoctions in which the distinctive character and iefTect of intoxicating liquors are present, so that it may be used as a beverage, notwithstanding the other ingredi- ents it may contain. Marks v. State, (Ala. 1909), 48 So. 8G4. Per May- field, J. Upon the question of what is cov- ered by the phrase " intoxicating liquors " it is said in one of the earlier cases in New York : " It seems to me that but one safe and sensible line of distinction can be drawn be- tween the different kinds of liquor containing alcohol, in order to deter- mine upon which of them the statute was intended to operate; and that is between those which are capable of causing intoxication and those con- taining so small a percentage of alco- hol that the human stomach cannot contain sufficient of the liquor to pro- duce that effect; as is said to be the case with respect to spruce beer, gin- ger beer, lager beer and some others. It must be strong liquor: that is strong enough with the inebriating principle or element whether obtained by distillation or fermentation, to produce intoxication." Board of Com- missioners v. Taylor, 21 N. Y. 173, 178. Per Welles, J. " Hop tonic " " homestead ci- der.— Where the sale of " intoxicating beverages " or " intoxicating liquors " was forbidden within four miles of any schoolhouse the sale of " hop tonic " and " homestead cider " which intoxicated the purchaser to the ex- lent of absolute drunkenness was held to be a violation of the act. it being declared that all intoxicating liquids or drinks, of whatever name, kind or quality were within the prohibition of Buch law. Moore v. State, 90 Tenn. 544. 35 S. W. 556. The word " intoxicating " in- cludes a larger class of cases than 4 DEFINITIONS AND TERMS. [§ 4 mentation nor the presence of alcohol can be adopted as an absolute legal test to determine whether any liquid is intoxicating or not, inasmuch as there are fermented liquors containing alcohol, which, do not inebriate. 5 Generally, however, any liquor con- taining alcohol which is based on such other ingredients or by reason of the absence of certain ingredients that it may be drank by an ordinary person as a beverage and in such quantities as to produce intoxication, is intoxicating liquor. If its composition is such that it is practicable to commonly and ordinarily drink it as a beverage and to drink it in such quantities as to produce intoxica- tion, then it is intoxicating liquor. 6 But a charge that declares that no liquor is intoxicating unless its moderate and reasonable use will produce inebriety is to declare that no liquor whatever is intoxicating, and prescribes an erroneous test. 7 § 4. Same subject — judicial notice. Whatever is generally and popularly known as intoxicating liquors, such as whisky, brandy or gin is within the prohibitions and regulations of an intoxicating liquor statute and may be so declared as matter of law by the courts. 8 So the fact that brandy, " spirituous." They bear the relation In ordinary use the terms, " in- to each other of genus and species; all toxicating bitters " and " intoxicating spirituous liquors are intoxicating, drinks " can not be said to mean the but all intoxicating liquors are not same thing. Roberson v. State, 100 spirituous. Commonwealth v. Her- Ala. 123, 14 So. 809. rick, 6 Cush (Mass.) 465, 408. Per 5. State v. Biddle, 54 N. H. 379, Shaw, C. J., quoted in State v. Adams, 382. 51 N. H. 568, 569. 6 - Heintz v. Le Page, 100 Me. 542, Where it was shown that the 62 Atl. 605. See Mason v. State, 1 defendant sold at his saloon an Ga. App. 534, 58 S. E. 139. Decker article called " pop "; that it was v. State, 39 Tex. Cr. 20, 44 S. W. 845. a malt liquor which would intoxicate 7. Wadsworth v. Dunnam, 98 Ala. if taken in sufficient quantity; that it 610, 13 So. 597. tasted like beer and was drawn from 8 - Intoxicating Liquor Cases, 25 kegs like beer kegs; it was held that Kan. 751, 37 Am. Rep. 284. See also the jury were justified in finding the Marks v. State, (Ala. 1909), 48 So. liquor sold to be a malt liquor, of an 864. intoxicating quii lily. Cloodfreidson v. "As to such well-known beverages People, 88 111. 284. as whisky, brandy, gin, ale and strong s r. ') DEFINITIONS AND TERMS. rum and gin are spirituous or intoxicating liquors is said to be involved in the very definition of the terms, and is a matter of common knowledge and it is not necessary for the jury to find that they are of such a character. 9 § 5. Same subject — evidence to show character of. " Though courts have taken judicial notice, and have said that jurors might, from their own knowledge alone determine that whisky, brandy and other liquors which are always intoxicating, were so, this should not be so as to that which might or might not be an intoxicating fluid when sold, but only to that kind which is always so and known to everybody to be so." 10 Some liquors are not judicially known to be intoxicating and the question whether such a liquor is intoxicating is one of fact for the jury and upon this question evidence of its strength as disclosed by an analysis is proper. 11 So in a case in New York it is said: beer, the courts without proof acting upon their own knowledge derived from observation, will take notice that they are intoxicating and will therefore require no proof of the fact." Rau v. People, 63 N. Y. 277. " Now that ale, strong beer, porter and most of the fermented drinks, known in this county, and which are sold at public houses and groceries by the drink, can and do produce in- toxication to a greater or less extent, and that such is the ordinary effect of their use as a beverage, no man of mature years, who is not strongly ob- livious to surrounding and passing events, can have failed to observe. The fact is 90 patent that it is im- possible to close our eyes against it." Board of Commissioners v. Taylor, 21 X. Y. 17:?. Per Welles, J. Mead or metlieglin. — It has been decided that the court does not ju- dicially know that mead or metheglin is an alcoholic, spirituous, vinous or intoxicating liquor or beverage, or that, if drunk to excess, it will pro- duce intoxication. Marks v. State, (Ala. 1909), 48 So. 864. 9. State v. Wadsworth, 30 Conn. 55. See also State v. Hunger, 15 Vt. 200. 10. Feldman v. City of Morrison, 1 111. App. 460. Ter Leland, J. 11. Slate v. Hughes. 16 R. I. 403, 16 Atl. 911. The court said: "It is a fact of common knowledge that alcohol intoxicates and consequently evidence of the proportion of alcohol ci ntained in a liquor tends directly to show its character and strength. The presence of alcohol may be so considerable as necessarily to raise a presumption of the intoxicating qual- ity of the liquor, or so insignificant as to prevent such a presumption, or, at least, to make it doubtful." Per St ini'ss, J. •• When the statute uses merely general terms such as ' alcoholic ', 6 DEFINITIONS AND TERMS. [§ Q " There are doubtless intoxicating beverages which are not so well known and of whose character the courts could not take notice and more intoxicating beverages may yet be discovered. As to all such, when one is charged with selling them in violation of law there must be proof that they are intoxicating before con- viction can be had." 12 And where a law declares that all build- ings used for the sale or keeping of intoxicating liquors shall be common nuisances but does not define what shall be included within the term " intoxicating liquors " resort may be had to other laws to determine what is so included. 13 Where under the statute all fermented liquor is presumed to be intoxicating, if the defendant denies that the fermented liquor sold by him is of such a character, it devolves upon him to remove the presumption of law by evidence. 14 And where one is indicted under a statute making penal the unlicensed sale of malt liquors, the court may properly charge the jury that it is not essential that the liquor sold should be proved to have been intoxicating, and that the jury need only " consider the evidence as to whether the liquor was in- toxicating in determining whether it was malt liquor." 15 § 6. Same subject — name immaterial. It is immaterial by what name a liquor may be called or that it is not generally known to be intoxicating, yet if it appears from the evidence that it is of such a character, the jury may properly find it to be an " intoxicating liquor " within the meaning of the 'spirituous', 'vinous', 'malt', and in- v. State (Ala. 1909) 48 So. 864. Per toxicating liquors or beverages then Mayfield, J. it is a question for the courts or 12. Rau v. People, 63 N. Y. 277. juries to determine, according to the 13- State v. Hughes, 16 R. I. 403, facts in each particular case, whether 16 Atl. 911, citing Commonwealth v. a given liquor, beverage, or fluid is Carpenter, 100 Mass. 204; Common- within the inhibition of the statute. wealth v. Shea, 14 Gray (Mass.) 86. Sometimes it is then a question of *-*. State v. Volmer, 6 Kan. 371. law for the court, and sometimes a 15. Eaves v. State, 113 Ga. 749, 39 question of fact for the jury." Marks S. E. 318. § : J DEFINITIONS AND TERMS. law. 18 So in charging the jury upon the subject whether the liquid sold under the name of " pop beer" or " homemade beer " was lager beer it was decided that there was no error in stating to them that they were not to be governed by the name by which it was called, but by what it was in fact: and that to convict, they were to find it established beyond a reasonable doubt to have been lager beer that was sold. 17 § 7. ' ' Spirituous liquors ' ' defined and considered — ' ' distilled spirits." "Spirituous" means, containing, partaking of spirit, having the refined, strong, ardent quality of alcohol in greater or less degree. 18 " Spirituous liquors " are said technically and ac- curately to include all liquors which contain alcohol in appreciable quantities, but in its ordinary acceptation imports distilled liquors. 19 The term spirituous liquors does not include malt or 16. Prussier v. Guenther, 16 Abb. N. C. (N. Y.) 230. Thus a liquor known as "sun-smile" was held to be an intoxicating liquor within the meaning of the law. 17. State v. Kibling, 63 Vt. 636, 645, 22 Atl. 613. 18. State v. Giersch, 98 N. C. 720, 724, 4 S. E. 193. The Standard Dictionary defines spirituous as " 1. Containing alcohol ; especially containing a large percent- age of alcohol; intoxicating; ardent; as spirituous wine; specifically, dis- tilled in distinction from fermented or brewed." " Spirituous liquor is that which is in whole or in part composed of alcohol extracted by distillation, whisky, brandy and rum are exam- ples." Mark v. State. (Ala. 1909), 48 So. 864. Per Mayfield, J. 19. Allred v. State. 89 Ala. 112, 8 So. 56. Webster defines the word " spirit- uous " as rum, whisky, brandy and other distilled liquors, as disting- uished from wine and malt liquors. Sarlls v. United States, 152 V. S. 570, 572, 14 Sup. Ct. 720, 38 L. Ed. 556. The Century Dictionary defines " spirituous " liquors as " containing much alcohol: distilled, whether pure or compounded, as distinguished from fermented: ardent; applied to a li- quor for drinking." Sarlls v. United States, 152 U. S. 570, 572, 14 Sup. Ct. 720, 38 L. Ed. 556. The Standard Dictionary defines spirituous liquors as "in common parlance any or all intoxicating bev- erages, sometimes excluding light in- toxicants as beer: generally in law any intoxicating liquor, produced by distillation, or by rectifying, com- pounding or otherwise treating or using distilled alcoholic fluids, in dis- 8 DEFINITIONS AND TERMS. [§ 8 fermented liquors. 20 So an indictment for being common sellers of " spirituous liquors " does not charge the sale of ale, porter and cider and evidence of the sales of such liquors is not admissible under such an indictment. 21 And spirituous liquors are not within a statute in reference to licenses for the sale of " wines, beer, ale, cider or other fermented liquor. 22 The term " distilled spirits " is said to have an ordinary and literal meaning which implies dis- tillation and when used in that sense to be confined to the product of distillation. 23 § 8. Same subject continued. It is said that all spirituous liquor is intoxicating and that it is no ground for a reversal that the judge in designating the liquor about which the witnesses testified used the word " intoxicat- ing " instead of " spirituous " as used in the information. 24 And tinetion from fermented or brewed intoxicating beverages, as wine or beer." Spirituous liquors are denned in a case in North Carolina as implying such liquors as contain alcohol and thus have spirit, no matter by what particular name denominated, or in what liquid form or combination they may appear. State v. Giersch, 98 N. C. 720, 4 So. 193, holding that lager beer and wine are included in the words spirituous liquors. " Fermented liquors " are not in common parlance " spirituous li- quors." The latter term is popu- larly used to designate distilled li- quors as distinguished from fer- mented liquors. It implies " that the rage is composed in part or wholly of alcohol extracted by dis- tillation," and does not apply to a liquid whose alcoholic properties are latent, and exist substantially in the same form as in the original mater- ial from which the liquid was made. State v. Adams, 51 N. H. 568, 569. Per Smith, J. 20. Fritz v. State, 1 Baxt. (Tenn.) 15. State v. Thompson, 20 W. Va. 674, holding they do not include beer. 21. State v. Adams, 51 N. H. 568. 22. Commonwealth v Jordan, 18 Pick. (Mass.) 228. 23. United States v. Anthony, 24 Fed. Cas. 14460, 14 Blactchf. 92. " Domestic distilled spirits " are de- fined in Pennsylvania as meaning spirits distilled within that state and it was held in this case that parol evidence, that all spirits distilled within the United States are known as " domestic distilled spirits " is in- admissible. It was also held that spirits manufactured in another state and rectified in Pennsylvania were not within the inspection laws as to " domestic distilled spirits." Com- monwealth v. Giltinan, 64 Pa. St. 100. 24. State v. Pritchard, 16 S. D. 166, 91 N. W. 583. § 9] DEFINITIONS AND TERMS. 9 it has been held sufficient to aver that the respondent sold brandy, rum and gin without averring that they were spirituous liquors. 25 But an indictment which charges the sale of " spirituous and in- toxicating liquors" is not supported by proof of sales of liquor which are intoxicating but not spirituous. 26 And an indictment founded upon a statute as to spirituous liquors and which charges the sale of intoxicating liquors, without alleging that they were spirituous liquors was held not to set forth the offense with requisite certainty. 27 § 9. " Intoxicating liquors "—" spirituous liquors "—where statutes specify what are. Where a statute forbids the sale of " intoxicating liquors " and specifies therein the particular liquors which come within the meaning of that term, the naming of such liquors fixes their char- acter as being within the prohibited class and the question whether a particular liquor mentioned is or is not in fact intoxicating is not material. So it has been said that " when it appears that a liquor comes within the scope of the forbidden enumeration, that moment its intoxicating character becomes fixed by law and its non-intoxicating character, as a matter of fact, becomes entirely immaterial with respect to the application of the statute." 2S And similar words are used in a recent case Alabama. 2811 So a liquor 25. State v. Munger, 15 Vt. 290. "any liquor or mixture of liquors Judicial notice will be taken that which shall contain more than two whisky, brandy and rum are spiritu- per cent by weight of alcohol" has ous. Marks v. State (Ala. 1909), been held constitutional as an ex- 48 So. 864. ercise of police power. State v. 26. Commonwealth v. Livermore, 4 Gravelin, 1<> K. I. 407, lti Atl. 914; Gray (Mass.), 18. State v. Guinness, 1G R. I. 401, 1G ^r. McDuffie v. State, S7 Ga. 687, Atl. 910: See state v. McKenna, 10 13 S. E. 500. R. I. 398, 17 Atl. 51. 2S. State v. Frederickson, 101 Me. - Sn - "When a prohibition Btatute 37 63 Atl. 535. Per Spear, J. names, designates, or enumerates the Constitutionality of statute a kinds, classes, or Bpecies or beverages statute providing thai the words or liquors against which its provi- " intoxicating liquors" shall include sions are directed, then there is no 10 DEFINITIONS AND TERMS. [§ 9 which is not actually intoxicating but which is declared to be of such a character by statute may be described in an indictment on such statute as intoxicating. 29 So where alcohol is declared by statute to be an intoxicating liquor it is such regardless of the fact that the quantity drank at any one time would not have that effect and no matter how it may be diluted or disguised it so remains and as a matter of law is intoxicating. 30 And where by statute cider was among other named liquors declared to be intoxicating when kept and deposited with intent to sell the same for tippling pur- poses or as a beverage it was decided in a recent case that the enumeration of the liquors was intended to include and did in- clude cider when it was so kept and deposited without regard to whether it might be unfermented and non-intoxicating in fact. 31 Again where a statute declares that the term " intoxicating liquor " " as used in this act shall be construed to mean wine and spirituous liquors and any composition of which wine and spiritu- ous liquors is a part," it has been decided that it is not proper room for further inquiry into the scope of such a statute. When it clearly appears that a given article, liquor, or beverage comes within the scope of the forbidden enumeration and is intoxicating, its properties be- come immaterial to courts and juries because fixed by the law-making power of the state." Marks v. State (Ala. 1900), 48 So. 8G4, 8G7. Per Mayfield, J. See Chamberlayne's Modern Law of Evidence, § 700. 2!>. Commonwealth v. Timothy, 8 Gray (Mass.), 480. ."><>. State v. Certain Intoxicating Liquors. 70 Iowa 243, 41 N. W. 6, 2 L. K. A. ' So it was said in this case: "The statute provides that the word ' in- toxicating liquors' as used therein, 'shall be construed to mean alcohol, wine, beer, spirituous, vinous and malt liquors, and all intoxicating liquors, whatever.' Alcohol is there- fore an intoxicating liquor, regard- less of the fact that the quantity drank at any one time would not have that effect. It is immaterial, in a statutory sense, what effect alcohol may have on the human system ; it is an intoxicating liquor. However much it may be diluted, it must re- main an intoxicant when used as a beverage. That is to say the statute provides that alcohol is an intoxicant whenever and however used as a beverage; and no matter how it may be diluted or disguised it so remains simply because the statute ho declares. The liquor in question contained alcohol, and therefore it, as a matter of law, was intoxicating." Per Seevers, J. 81. State v. Frederickson, 101 Me. 37, 03 Atl. 535. v i,,j DEFINITIONS AND TERMS. for the state to ask a witness whether ale, porter, and beer are intoxicating liquors within the meaning of such ad § 10. Same subject continued. Intoxicating malt liquor has been held to be within the mean- ing of a statute declaring that by the words " spirit," " spirituous liquor " or " intoxicating liquor " shall be intended all spirituous or intoxicating liquor, and all mixed liquor any part of which is spirituous or intoxicating unless otherwise expressly declared. 33 And under the same statute it has been decided that all in- toxicating wines and other intoxicating fermented liquors, not being expressly excluded, come within the meaning of the statute. 34 And where the statute declares that the words " intoxicating liquors " as. used therein shall apply to any spirituous, vinous, or malt liquors the court will judicially recognize the fact that ale is a malt liquor and within the meaning of the statute." 5 So where it is expressly provided by statute that ale is included among intoxicating liquors within the meaning of the act it is not necessary for the jury, on a prosecution for a violation of the statute to find that ale is an intoxicating liquor. 36 Beer is also a malt liquor and where by statute all malt liquors are made in- toxicating in a prosecution for the sale of intoxicating liquors without a license on affidavit charging the defendant with the un- lawful sale of beer is not objectionable on the ground that it does not charge the sale of malt or intoxicating liquors. 37 And where by statute the term "spirituous and intoxicating liquors" in- cludes "beer manufactured from hops, and malt or barley" a complaint was In Id sufficient which charged the defendant with selling "spirituous liquor to wit, one-half gallon of beer" with- 32. State v. Witt mar. 12 Mo. 4u7. 36. Wiles v. State. 33 Iml. 206. 33. State v. Lager Beer, G8 N. II. 86. state v. Wadsworth, 30 Conn. 377, 3!) Atl. 255. 55. 34. Jones v. Surprise, 64 N. H. 37. Walsh v. State, 126 Ind. 71. 25 243, 9 Atl. 384. N. E. ss:s. >\ L. R. A. ^;\. lL > DEFINITIONS AND TERMS. [§§ H, 12 out a license therefor. 38 Under a statute which makes malt liquor an intoxicating liquor since the court as a matter of law must know that beer is a malt liquor, it is not necessary to a conviction for the jury, besides finding a sale of beer, to find also, as a mat- ter of fact, that beer, which is a malt liquor ; is intoxicating, as the court takes judicial notice of the fact that it is intoxicating. 39 Again beer being a fermented liquor it comes within the meaning of a statute which declares that " all fermented drinks and wines of every kind shall be considered intoxicating." 40 Where beer is by statute classified as an intoxicating liquor, if there are kinds of beer that are not in fact intoxicating the burden is on a defend- ant to show that the beer in question was of that kind, if he claims such to be the fact. 41 § 11. " Ardent spirits " defined. Worcester defines " ardent spirits " as a term applied to liquors obtained by distillation, such as rum, whisky, brandy and gin. 42 And in the Standard Dictionary the term is defined as alcoholic distilled spirits. 43 § 12. " Malt liquor " defined. The common and approved usage of the term " malt liquor " is " an alcoholic liquor as beer, ale or porter, prepared by fermenting an infusion of malt." 44 " Malt liquors " embrace porter, ale, beer, and the like, which are the result or product of a process by which grain — usually barley — is steeped in water to the point of 38. State v. Brown, 51 Conn. 1. 11. State v. Cloughly, 73 Iowa 626, And see in this connection. State v. 35 N. W. (152. Watts, 101 Mo. App. 658, 74 S. W. 42. Sarlls v. United States, 152 377. Where a similar conclusion is U. S. 570, 572, 14 Sup. Ct. 720, 38 reached. L. Ed. 556, quoted in Burch v. City •"•?>• Douglas v. State, 21 Ind. App. of Ocilla (Ga. App. 1908), 62 S. E. 302, 52 N. E. 238. 666. See Stat.- v. Walder, 20 Ohio S. & 43. Standard Diet., p. 111. C. P. Dec. 25. 44. State v. Gill, 89 Minn. 502. 95 40. State v. Lemp, 16 Mo. 389. N. W. 449, citing Webster's Inter- national Dictionary. § 13] DEFINITIONS AND T F.K.MS. 13 germination, the starch of the grain being thus converted into sacharine matter, which is kiln dried, then mixed with hops, and, by a further process of brewing, made into a beverage. 45 In Alabama it has been decided that the court will take judicial notice of the meaning of the words " malt liquor " as used in a penal statute, and may, in a proper case, give its definition in a charge to the jury. 46 But courts cannot judicially know that all malt liquors are intoxicating. 47 And where it was provided by statute that " ale, porter, strong beer, lager beer and all other malt liquors shall be considered intoxicating liquors within the mean- ing of this chapter, as well as all distilled spirits " the court de- clared that the term malt liquor is a general term embracing several kinds of liquor, and that what liquors are embraced in it is a question of fact for the jury and not of law for the court. 48 § 13. " Vinous liquors " denned. " Vinous liquors " are such as are made from the juice of the Malt liquor is defined to be a beverage prepared by infusion of malt. United States v. Ducournau, 54 Fed. 138. The Century Dictionary defines malt liquor as " a general term for an alcoholic beverage produced merely by the fermentation of malt, as offered to those obtained by the distillation of malt or mash." Sarlls v. United States, 152 U. S. 570, 572, 14 Sup. Ct. 720, 38 L. Ed. 556. Mali liquors are the product of a process by which grain is steeped in water to the point of germination, the starch of the grain being thus con- verted into saccharine matter, which is kiln dried, then mixed with hops and. by a further process of brewing, made into a beverage. Marks v. State (Ala. 1909), 48 So. 804. citing Allred v. State. 89 Ala. 112, 8 So. 56; 1 Mayfield's Dig. 463; Tinker's Case, 90 Ala. 647, 8 So. 814. 45. Allred v. State, 89 Ala. 112, 8 So. 56. 46. Adler v. State. 55 Ala. 16. The court also held in this case that it would take judicial notice that " Webster's Unabridged Dictionary " was a standard authority as to the meaning of English words and might permit his definition of those words to be given to the jury. 47. Eaves v. state. 113 Ga. 740. 30 S. E. 318; Shaw v. state. 56 Tnd. 188. holding that an indictment for un- lawfully selling "malt liquor " i* insufficient on the ground stated in the text. 4S. State v. Starr. 67 Me. 242. Compare Luther v. State (Neb. 1909). 120 X. YV. 125. 14 DEFINITIONS AND TERMS. [§§ 14, 15 orape. 49 The term is also held to include the juice of black- berries with sugar added, after fermentation, and to which an ad- ditional ingredient of alcohol has been added by chemical proc- ess. 50 So it is said in a recent case that the term " vinous liquor," " ex vi termini, means liquor made from the juice of the grape, but it may include wine made from fruits or berries by a like process of fermentation, when sugar and alcohol are added." 51 § 14. " Intoxication ' ' defined. The word intoxication has been denned as meaning an abnormal mental or physical condition due to the influence of alcoholic liquors, a visible excitation of the passious, an impairment of the judgment, or a derangement or impairment of physical functions or energies. * § 15. " Dramshop "— " dramshop keeper "— " Saloon " defined. A dramshop is a place where spirituous liquors are sold by the drink and although it is commonly called a saloon, yet it is not a word of as broad a meaning as the latter is. In order to con- stitute a place a saloon it is not necessary that ardent spirits should be offered for sale or that it should do a business requiring a license under the revenue laws of the state. 53 And a dramshop 49. Allred v. State, 89 Ala. 112. 8 53. Snow v. State, 50 Ark. 557, 9 So. 56; Adler v. State, 55 Ala. 16. S. W. 360, holding that a place where 50. Hinton v. State, 132 Ala. 29, cider, birch beer, ginger ale, and like 31 So. 563. refreshments are served after the 51. Marks v. State (Ala. 1909), 48 manner of dramshops is a saloon S... 864. Per Mayfield, J., citing within the letter and spirit of a law Allred's Case, 89 Ala. 112, 8 So. 56; making it a misdemeanor to permit ArlWs Case, 55 Ala. 24; Hinton v. a minor to play pool in a "dramshop State, 132 Ala. 29, 31 So. 563. or saloon." 52. Wadsworth v. Dunnam, 98 Ala. "A dramshop" is a place where a 610. 13 So. 597. person is engaged in the sale of in- The Standard Dictionary defines in- toxicating liquors as a business, toxication as "1. The act of making State v. Minnesota (Minn. 1909), drunk, or the state of being drunk; 119 N. W. 494. inebriation: drunkenness. 2. Figura- In Illinois a dramshop has been tively a staff of great mental excite- defined by statute as "a place where ment ; elation using to frenzy." spirituous or vinous or malt liquors L6 DEFINITIONS AND TERMS. 15 keeper was defined by an early statute in Missouri to be a person "permitted by law, being licensed according to the provision* the act, to sell intoxicating liquors in any quantity less than ; quart." 54 § 16. ' ' Tippling house ' ' defined. "A tippling house" is a place where intoxicating liquors are sold and drank, where people tipple or drink intoxicants at the place. The drinks may be either sold or given away. The term " tippling house " is not identical with the term " disorderly house " nor is either necessarily included in the other. 05 are retailed by less quantity than one gallon." Strauss v. City of Gales- burg, 203 111. 2.34, G7 N. E. 836. The Standard Dictionary defines dramshop as " a place where drams are sold; a liquor saloon." A saloon is a building or place where liquors are kept for sale at retail, and may include more than one room. State v. Baker, 50 Oreg. 381, 92 Pac. 1076. The word " saloon " applied to places of resort is defined by Wor- cester to be " a place of refreshment." K if son v. Mayor, 26 Mich. 325. The terms " barroom " " drink- ing shop " and " tavern " are said to be commonly understood to mean " a house licensed to sell liquors in small quantities to be drunk on the spot." Matter of Schneider, 11 Oreg. 288, 297. A room in a hotel set apart for the sale of intoxicating liquors is a saloon within the meaning of the Michigan statute authorizing villages to sup- press saloons for the sale of liquors. Rattenbury v. Village of Northville, 122 Mich. 158, 80 N. W. 1012. 64. State v. Slate, 24 Mo. 530: State v. Owen, 15 Mo. 506. 55. Territory v. Robertson, 19 Okla. 149, 92 Pac. 144. 16 PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 17 CHAPTEE II. PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. Section 17. Alcohol. 18. Ale. 19. Beer generally. 20. Beer— strong beer — judicial notice as to character of. 21. Beer as an intoxicating liquor — judicial notice — decisions. 22. Same subject continued — contrary view. 23. Same subject — conclusion. 24. Lager beer. 25. Lager beer — as an intoxicating liquor. 26. Brandy. 27. Brandy cherries and fruit. 28. Cider. 29. Cider — hard cider. 30. Cider — statutes as to. 31. Gin. 32. Porter. 33. Whisky — as a spirituous liquor. 34. Whisky — as an intoxicating liquor. 35. Wine. 36. Wine — as an intoxicating liquor — statutes. 37. Medicines — compounds recognized by standard dispensatories. 38. Compounds — proportion of alcohol — question of use as a bev- erage. 39. Compounds — sale of to be used as a beverage. 40. Compounds — good faith in making sale. 41. Compounds — whether intoxicating liquor — question of fact — ju- dicial notice. 42. Compounds — whether intoxicating liquor — conclusion. Sec. 17. Alcohol. Alcohol is defined as " a volatile organic body constantly formed during the fermentation of the vegetable juices, containing sugar § 17] PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. 17 in solution. In popular language, it is the intoxicating principle of fermented liquor. It is exclusively produced by the process of fermentation." 1 And it is said to be a matter of common knowl- edge, that alcohol is the intoxicating element in intoxicating liquor : that pure alcohol in not used as a beverage : and that all intoxicating liquors that are so used contain alcohol mingled with other things particularly with water. 2 And that alcohol is intoxi- cating is held to be a fact of which the court will take judicial notice and of which proof is unnecessary. 3 So it has been decided that alcohol is an intoxicating liquor and that under a statute for- bidding the sale of intoxicating liquors a defendant may be con- victed upon proof of the selling of alcohol where it was plain that it was a mere subterfuge for evading the law. 4 Again in an early case in Illinois it is said that alcohol is not in common parlance hot and pungent to the taste, having a slight, but not offensive scent. It has but one source of fermentation, and is extracted from its by-products by distillation ; its purity and strength depending upon the degree of perfec- tion or completeness of distillation. Marks v. State (Ala. 1909), 48 So. 8G4. Per Mayfield, J. " Alcohol, this essential element in all spirituous liquors, is a limpid colorless fluid. To the taste it is hot and pungent, and it has a slight and not disagreeable scent. It has but one source — the fermentation of BUgar and saccharine matter. It comes through fermentation of sub- stance that contain sugar proper, or that omit a in starch, which may be turned into sugar. All substances that contain either sugar or starch, or both, will produce it by fermenta- tion. It is a mistake to suppose, as many persons do, that it is really produced by distillation. It is pro- !• Eureka Vinegar Co. v. Gazette Printing Co., 35 Fed. 570, 571. Alcohol is defined as a volatile organic body, a limpid colorless liquid, duced only by fermentation, and the process of distillation simply serves to separate the spirit — the alochol from the mixture, whatever it may be, in which it exists." State v. Giersch, 98 N. C. 720, 723, 724, 4 S. E. 193. Per Merrimon, J. The Standard Dictionary defines alcohol as " a volatile, inflammable, colorless liquid, of a penetrating odor and burning taste, found diluted in fermented sugar or starchy sub- stances, from which it is ohtained by repeated rectification: the intoxica- ting principle wines and liquors." -• Commonwealth v. Morgan, 149 Mass. 314,- 316, 21 N. E. 3G9. Per Field, J. 3. Snider v. State, 81 Ga. 753, 7 S. E. 631, 12 Am. St. Rep. 350; See Sebastian v. State, 44 Tex. Cr. 508, 72 S. W. 849. See Chamberlayne's Modern Law of Evidence, 8 710. 4. Winn v. State. 43 Ark. 151; State v. Witt, 39 Ark. 216. 18 PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§18 considered a spirituous liquor, although it is the basis of all spirituous liquors but the court declared that it was not prepared to say that selling pure alcohol was not a selling of spirituous liquor. 5 And in a recent case in Alabama it is said : " Whether pure alcohol conies within the phrases ' spirituous ' or ' intoxi- cating ' liquors is a question not well settled — some courts holding that it depends upon the language of the particular statute and the facts of each particular case, whether it was sold or purchased purely for medicinal or mechanical purposes or to be used as an intoxicating beverage ; but the weight of the authorities seems to be to the effect that, unless otherwise made by the language or provisions of the statute, it will be included in the terms ' spiritu- ous ' and ' intoxicating ' liquors." 6 But in a case in Arkansas it is held that alcohol is not either ardent or vinous spirits, or liquor of any kind, 7 and also in a later case in the same state it is declared that the court does not judicially know that alcohol is an intoxicat- ing beverage like whisky, nor that it is in common use for pur- poses of dissipation, nor even that it is capable of being applied to such a use. 8 Again in a case in Mississippi it was held that an indictment charging the unlawful sale of alcohol charged no offense as alcohol was not a " vinous or spirituous liquor " within the meaning of the statute. 9 § 18. Ale. That ale is a malt liquor is a fact of which the courts will take judicial notice 10 and it has been decided that whether ale is in- 5. Bennett v. People, 30 111. 389. liquors of all kinds, but alcohol, 6. Marks v. State (Ala. 1909), 48 specifically, is neither the one nor the So. 864. Per Mayfield, J other. It is a distinct thing. It is 7. State v. Martin, 34 Ark. 340, the intoxicating principle of vinous 341. and spirituous liquors but is not such 8. State v. Witt, 39 Ark. 216. liquor in the contemplation of the »• Lemly v. State, 70 Miss. 241, 12 statutes." Per Campbell, J. So. 22, 20 L. R. A. 654. The court 10. Miles v. State, 33 Ind. 206. said: "Alcohol is an ingredient or Ale is defined in the Standard quality of vinous and spirituous Dictionary as a " beverage made from § 19] PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. 19 toxicating or not, is not a question of law, but of fact, and the question may be submitted to the jury without evidence to show that it is intoxicating, it being declared that affirmative proof of such fact is unnecessary as everybody knows that it is intoxi- cating. 11 Ale is not, however, a spirituous liquor within the pro- hibition of a statute as to the sale of " any wine or spirituous liquor, mixed or unmixed " but a liquor sold as ale may be so mixed with spirituous liquor as to fall within the prohibition. 12 But ale and strong beer have been held to be included in the term " strong or spirituous liquors." 13 In another case, however, in New York it is decided that the ale is not included in the words " strong or spirituous liquors. 14 § 19. Beer generally. Beer is a fermented liquor, chiefly made of malt. 15 And the fact that beer is a fermented liquor is, one of which the courts a fermented infusion of malt, now usually flavored with hops ; beer, es- pecially that having a good deal of body. In the United States the word ale as distinguished from beer, is used for a malt liquor made by ' top- fermentation,' in which the newly formed yeast goes to the top of the fermented liquor and is removed therefrom." 11. State v. Barron, 37 Vt. 57. That ale is an intoxicating liquor, see People v. Hawley, 3 Mich. 330; Blatz v. Rohrbach, 116 N. Y. 450, 22 N. E. 1049, 6 L. R. A. 669. Chamberlayne's Modern Law of Evidence, § 708. Upon the question whether ale is intoxicating it has been decided that it is competent for the jury to find it to be such on the testimony of a wit- ness who saw and smelled but did not taste it. Haines v. Hanraham, 105 Mass. 480. 12. Walker v. Prescott, 44 N. H. 511. That ale is not a spirituous liquor, see also Fleming v. New Brunswick, 47 N. J. L. 231. 13. Board of Commissioners v. Freehoff, 17 How. Prac. (N. Y.) 442; citing Nevin v. Ladue, 3 Den. 437. 14. People v. Crilly, 20 Barb. (N. Y.) 246; wherein the court refers to the opinions of the court in Nevin v. Ladue, 3 Den. (N. Y.) 437, and said in respect thereto: "Al- though the opinions of the late judges of the court, and of Chancellor Wal- worth who concurred with them, are entitled to great respect, yet as they were expressed upon a question not necessarily involved in the case before the court, they have not the force of authority, and we are at liberty to adopt and follow our own conclu- sions." Per Strong, J. if». United States v. Ducournau, 54 Fed. 138. 20 PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 19 will take judicial notice. 16 Beer as it is ordinarily understood and as it is defined in the dictionary is a fermented liquor. It is made from malted grain with hops, or from the extract of roots and other parts of various plants such as spruce, ginger and sas- safras. It is known under various names and designated by such terms as ale, porter, strong beer, small beer, lager, spruce beer and others. 17 And in a case in Kentucky it is decided that it is a matter of common knowledge that the word " beer " when used without a prefix signifies malt liquor, and that wherever malt liquor is not intended to be expressed by the use of this word, some prefix is used such as root beer or ginger beer and that when the word " beer " is used alone it means either common, lager, or bock beer. 18 In a case in Rhode Island, however, it was held to be error to instruct the jury that beer is a well known malt liquor, and that if the defendant sold under that name something which was not a malt liquor, it ought to appear in the testimony, or other- wise the jury should presume it was a malt liquor. The court 16. State t. Effinger, 44 Mo. App. 81. 17. Blatz v. Rohrbach, 116 N. Y. 450, 22 N. E. 1049, 6 L. R. A. 669. The Standard Dictionary defines beer as " 1. An alcoholic beverage produced from various substances containing starch, usually barley, by first bringing the starch into a more soluble condition by malting, then boiling the ground malt, during which operation the starch is changed into dextrin and glucose, afterward boiling the product with hops and finally fermenting it with yeast, which decomposes the glucose into alcohol and carbon dioxide. 2. A slightly fermented beverage made from infusion of roots, and other parts of various plants, as sassafras, ginger, spruce, etc., with molasses or sugar; as ginger beer, root beer, spruce beer." " Dutch beer " is an intoxicating liquor similar in character to " strong beer," both of which are produced from similar materials. It is a malt inebriating liquor, differing only from strong beer in its strength being less intoxicating. People v. Wheelock, 3 Park. Cr. (N. Y.) 9, 15. " Near beer " is a term of common currency to designate all that class of malt liquors which contain so little alcohol that they will not produce intoxication, though drunk to ex- cess and includes in its meaning all malt liquors which are not within the purview of the general prohibition law. Campbell v. City of Thomas- ville (Ga. 1909), 64 S. E. 815. 18. Locke v. Commonwealth, 25 Ky. Law Rep. 76, 74 S. W. 654. §§20,21] ('ARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. 21 said : " We do not think there is any presumption of law, that when a man speaks of beer he means a malt liquor, but we think that what he means is a question of fact for the jury. It is matter of common knowledge that there are beverages containing neither malt nor any other intoxicating ingredients which are called beers." 19 § 20. Beer — strong beer — judicial notice as to character of. The courts are not agreed as to whether judicial notice should be taken that beer is intoxicating. 20 But strong beer is held to be an intoxicating liquor. 21 And it has been held to be within the operation of a statute prohibiting " the manufacture of intoxicating beverages and the traffic therein." 22 It has also been held to be included within the meaning of the term " strong or spirituous liquors " as contained in an act entitled " an act to suppress intemperance and to regulate the sale of intoxicating liquors. 23 And it is said that strong beer, small beer, and ale were always here and in England recognized as intoxicating drinks. 24 In New York it is decided that the courts take notice that many of the beverages sold under the name of beer are not intoxicating, while the stronger kinds, such as ale, porter, and strong beer are of an intoxicating kind. 25 § 21. Beer as an intoxicating liquor — judicial notice — decisions. In a Federal court it is said that the general term " beer," as defined and commonly understood, refers to beer made from malted grain and that when any other kind of beer is meant a lf>. State v. Beswick, 13 R. I. 211, 21. Markle v. Town Council of 43 Am. Rep. 26n. Tor Durfco. J. Akron. 14 Ohio 586. 20. Eaves v. State, 133 Ga. 749, 39 2a> People v. Hawley, 3 Midi. 330. S. E. 318. 23, R° ar( l of Commissioners v. Whether or not "hop beer" is T;,vl " r 21 X V l73 - 24. Blatz v. Rohrbach, 116 N. Y. intoxicating is a question of fact for the jury. State v. MeCafferty, 63 Me. 223. 450, 22 X. E. 1049. 6 L. R. A. 669. 25. Blatz v. Rohrbach, 116 X. Y. 450, 22 X. E. 1049. L. R. A. 669. 22 PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 21 prefix should be added to indicate the kind referred to. 26 In Indiana it has been decided that when the evidence shows a sale of beer under circumstances which make the sale unlawful, it will bo presumed in the absence of any showing to the contrary that the beer so sold was a malt or an intoxicating liquor. 27 In Kansas it is decided that beer is presumed to be intoxicating but that the presumption that any article called beer is intoxicating may be rebutted by the evidence. 28 And in another case in this state it was held to be no error to instruct the jury " that beer is pre- sumed to be intoxicating until the contrary is proved," it being declared that in the absence of evidence to the contrary beer will always be presumed to be an intoxicating liquor. 29 In Nebraska it has been decided that the courts of that state will take judicial notice that beer is an intoxicant. 30 In a case in North Dakota it was held proper to instruct the jury, especially under a statute there in force, to the effect that a court is required to take judicial knowledge that beer was a malt liquor and was intoxicating, and 26. United States v. Dueournau, 54 Fed. 138. 27. Stout v. State, 96 Ind. 407; citing Myers v. State, 93 Ind. 251, wherein the court said: "When, therefore, a witness testifies to the sale or giving away of beer under cir- cumstances which make the sale or giving away of any intoxicating liquor unlawful, the prima facie in- ference is that the beer was of that malted and fermented quality de- clared by the statute to be an in- toxicating liquor, and the court try- ing the case oug. t to take judicial notice of the inference which thus arises from the use of the word ' beer ' in its primary and general sense." Per Niblack, J. 28. State v. May, 52 Kan. 53, 34 Pac. 407, citing State v. Teissedre, 30 Kan. 477, 2 Pac. 650; State v. Volmer, 6 Kan. 371 ; State v. Jenkins, 32 Kan. 477, 4 Pac. 809. 29. State v. Teissedre, 30 Kan. 476, 2 Pac. 650. 30. Sothman v. State, 66 Neb. 302, 92 N. W. 303, citing Peterson v. State, 63 Neb. 251, 88 N. W. 549; Kerkow v. Bauer, 15 Neb. 150, 155, 18 N. W. 27. No proof is required that beer is an intoxicant as this is a fact well known of which the court will take judicial notice. Peterson v. State, 63 Neb. 251, 88 N. W. 549. The word " beer " without re- striction or qualification, denotes an intoxicating malt liquor, and is within the meaning of the words in- toxicating liquors which term by statute is defined as including malt, spirituous and vinous liquors. Ker- kow v. Bauer, 15 Neb. 150, 18 N. W. 27. § 22] PARTICULAR LIQUORS— COM I'olXDS AND MEDICINES. 23 that, if the defendant claimed that the beer he sold was not intoxi- cating, the burden was upon him to so show. 31 In a recent case in Oregon it is decided that a charge of unlawfully selling intoxicat- ing liquor is sustained by proof of a sale of beer without any fur- ther description or testimony as to its intoxicating qualities. 32 In a case in Texas it is said that it seems to be well settled that the word "beer" in its ordinary sense denotes an intoxicating bever- age and is within the meaning of the words " strong or spirituous liquors " and that if it is to be understood in a restricted or quali- fied sense such as to denote root beer, molasses beer or other similar beers it would be incumbent upon the defendant to show that such is the case. 33 And in Washington it is decided in a recent case that in a prosecution for keeping a room for the sale of intoxicat- ing liquors contrary to law it is not error to instruct the jury that beer is an intoxicating liquor. 34 And in Wisconsin it has been decided that courts will take judicial notice that " beer " is a malt and an intoxicating liquor. 35 § 22. Same subject continued — contrary view. In a case in Georgia it is held that the court erred on the trial of the case in stating that it would take judicial notice that beer was intoxicating, the court declaring that as the evidence merely showed that the liquor sold was beer it could not be assumed to have been intoxicating. 30 In Illinois it has been decided that to 31. State v. Currie, 8 N. D. 545, intoxicating. Dallas Brewery v. 80 N. W. 475; Laws 1897, ch. 65, Holmes Bros (Tex. Civ. App. 1908), § io. 112 8. W. 122. 32. State v. Carmody, 50 Oreg. 1, 34. stale v. Moran, 4!>. Blatz v. Rohrbach, 116 N. Y. 450, 22 N. E. 1049, 6 L. R. A. 669. The court said: "As to strong and spirituous liquors the courts take no- tice of their intoxicating character and that stands in lieu of evidence. But as to the milder kinds of drink evidence of their character must be introduced. If therefore, on the trial, upon proof of the sale of beer with- out any evidence as to its character or quality, the jury is to be instructed that it is of the kind that intoxicates, the court assumes a fact not proven, and the burden of showing that it is of a non-intoxicating character is put on the defendant, as well might a per- son be convicted of grand larceny by proof of the theft of a watch or of burglary in the first degree by proof of the breaking into an inhabited dwelling. But as in the first named offense the value of the watch is an essential ingredient of the crime, and, in the second, it is necessary to prove that the offense was committed in the night time, so, with the sale of 'beer,' it must be shown that it was of an intoxicating character, otherwise there has been on violation of the law. The court can indulge in no presump- tion in the case except as to the in- nocence of the accused, and until it appears by sufficiency of proof that the particular beverage sold was of an intoxicating kind the presump- tion of innocence controls the case." Per Brown, J. Three judges con- curred in the majority opinion by Brown, J., and a dissenting opinion was written in which two judges con- §23] PARTICULAR LIQUORS C< kIPOl IDS AND MEDICINES. 25 matter of general knowledge that there are varieties of the bever- age denominated " beer " and that contain no malt and are not in- toxicating, the term " beer " in the absence of evidence to the con- trary will not be construed as importing an intoxicating liquor. 40 § 23. Same subject — conclusion. It will be seen from a review of the decisions in the two pre- ceding sections that the courts are not in harmony upon the ques- tion whether judicial notice will be taken that beer is an in- toxicating liquor. While the majority of the courts take the af- firmative view that judicial notice will be so taken, yet there are several states in which the contrary conclusion is reached, such conclusion being based on the ground that the term beer is a comprehensive one, including both intoxicating and non-intoxi- cating beverages and that evidence should be produced to show that a particular beer is intoxicating in order to establish its character as such. The weight of authority, however, seems to support the affirmative view. And that such a conclusion is the correct one is supported by sound reason. Courts will take judicial notice of the meaning of words as generally accepted and understood. The word beer as ordinarily used means an intoxicating malt liquor. For instance let a person ask for beer in a hotel or other place in which both intoxicating and non-intoxicating beers are sold and curred, the court thus standing four the absence of a statute declaring to three in favor of reversing the that beer " shall be deemed an in- judgment and granting a new trial. toxicating liquor, the mere statement In another ruse in New York it was of the witnesses that they bought held that the word "beer" in its beer, without any evidence as to the ordinary sense, denoted a beverage purpose for which it was bought, or which is intoxicating and waa within that it contained malt, or of its effect the meaning of the words "strong upon persons using it, or of the man- and spirituous liquors" as used in ner in which it was made is not Buf- the statute. People v. Wheeloek, 3 ficient to show that it was intoxi- Park. Cr. R. (N. Y.) 0. eating, and that a court will not take 40. State v. Sioux Falls Brew. Co., judicial notice thai a beer ^<> Bold was 5 S. D. 30. 58 N. W. 1, 26 L. R. A. a malt or intoxicating liquor." 138. In thi* ease it was held that in 2G PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 24 without question he will receive the intoxicating malt liquor. If he desires a beer which is non-intoxicating such as root beer, or beers of a similar character, it will be necessary for him to specify the particular beer meant. And this is the meaning of the word not merely among those engaged in the liquor traffic but as it is commonly used and understood by people generally. It would therefore seem that the proper rule would be for courts to take judicial notice of the fact that beer is an intoxicating liquor and that when it is claimed that the beer in question is a non-in- toxicating liquor the burden is on the one so claiming to establish such fact. § 24. Lager beer. Lager beer is a malt liquor, 41 of which fact the courts will, it is decided take judicial notice. 42 So it has been declared that the courts will take judicial notice that lager beer, and any other liquor made of malt, is a malt liquor. 43 But so far as popular usage goes " lager beer," is not included in the term " spirituous liquor " the result of distillation. 44 So it has been declared that 41. State v. Morehead, 22 R. I. 27C.2, 47 Atl. 545; State v. Goyette, 11 R. I. 592. 42. Watson v. State, 55 Ala. 158, wherein the court said : " Lager beer is certainly universally known here as a malt liquor; and it would be as vain and useless to offer evidence that such is its character, as that whisky is a distillation of grain, or wine of fermented juice of the grape, or cider the expressed juice of the apple. The word is now found in the dic- tionaries commonly used ; and from its introduction into this country as a beverage, that it is a malt liquor is known wherever it is drunk, or is an article of commerce. Courts cannot profess ignorance of the moaning of words of popular use, and about the signification of which no intelligent member of the community would hesi- tate. Evidence that lager beer was a malt liquor was not necessary to sup- port the indictment." Per Brickell, J. That lager beer is a malt and fermented liquor is a matter of common knowledge of which the courts will take judicial notice. Wal- ler v. State, 38 Ark. 656; State v. Goyette, 11 R. I. 592. 43. Netso v. State, 24 Fla. 363, 5 So. 8, 1 L. R. A. 852. 44. Sarlls v. United States, 152 U. S. 570, 572, 14 Sup. Ct. 720, 38 L. Ed. 566. In a case in North Carolina lager beer has been hold to be embraced by the term spirituous liquors. State v. Giersch, 98 N. C. 720, 4 S. E. 193. § 25J PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. ^7 lager beer, as the court judicially knows, is a malt liquor, contain- ing alcohol produced by fermentation, and is not within the terms of a local law prohibiting the sale of " vinous or spirituous liquor " unless it is shown that such liquors have been mixed with it. 45 § 25. Lager beer — as an intoxicating liquor. In a case in New York, it is declared that lager beer falls within the term " intoxicating liquors " if the use of it is ordinarily or commonly attended with entire or partial intoxi- cation, and whether such is the fact, is to be decided by the jury upon the evidence in the case. 46 And in another case in the same state it is decided that the courts will not take notice that lager beer is intoxicating but that upon the question whether lager beer is included in the words " intoxicating liquors " evidence was ad- missible to prove that it was intoxicating and that it was proper to charge the jury that if upon the evidence they found it to be intoxicating they should convict the defendant of violating a statute against the sale of intoxicating liquors on Sunday. 47 And where in a given case there was affirmative testimony to the effect that a liquid which comtained not exceeding two per cent of alcohol would not intoxicate, and that the identical bottle of liquid which the accused sold, and upon the sale of which the question of his guilt or innocence turned, did not contain more than two per cent of alcohol, it was, although there was other testimony to the effect that this identical liquid was lager beer, held to be erroneous to charge generally that all lager beer is in- toxicating. 48 But where it is provided by statute that lager beer shall be deemed intoxicating, lager beer may be described in an 45. Tinker v. State. 90 Ala. (147, State v. Ihindle, 28 Iowa 512. 8 So. 855, holding also that a state- 46. People v. Zeiger, 6 Park. Cr. ment in the admitted facts "that said R. (N. Y. ) 355. lager beer contained spirit, or alcohol, 4T. i; : u, v . People, 03 N. Y. 277. in sufficient quantity to intoxicate" 48. Smith v. State, 113 Ga. 758, does not show such admixture. See 39 S. K. 294. 28 PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 26 indictment as intoxicating liquor and cannot be proved not to be intoxicating. 49 And lager beer is an intoxicating liquor within the meaning of a statute entitled " An act to regulate the sale of Intoxicating Liquors " and which forbids the sale of " ale, wine, rum, or other strong or malt liquors." 50 Again it has been de- cided that after the state has proved that a defendant sold lager beer, the state may then prove, if it be denied by the defendant, that lager beer is an intoxicating liquor. 51 And in a case in South Dakota it is said : " We have no more hesitation in holding that the drink known as ' lager beer ' is intoxicating than we should have in holding that ' spruce beet ' is not, and we should put both rulings upon the same ground, to wit, that such is the common undertsanding resulting from common observation." 52 And it would seem that it is a matter of common knowledge that lager beer is an intoxicating liquor and that the courts may properly take judicial notice of the fact that it is such. § 26. Brandy. The fact that brandy, which is an alcoholic liquor, 53 is in- toxicating is one which is a matter of general knowledge and of which the judicial cognizance is taken by the courts. So it has been declared that brandy is an intoxicating liquor which fact is generally and commonly known and of which the courts will take 49. Commonwealth v. Anthes, 12 See also State v. Morehead, 22 R. I. Gray (Mass.) 29. 272, 47 Atl. 545. In Massachusetts it has been de- sl - State v - Volmer, 6 Kan. 371. eided that under the statute it is 5 " state v - Church, 6 S. D. 89, sufficient for the government to prove ™ N". W. 143. Per Kellam, J. that the defendant kept lager beer r>? " Th e Standard Dictionary de- with intent to sell it unlawfully fines brandy as " 1. An alcoholic without further proof that it is in- liq"°r distilled from wine. 2. A toxicating. Commonwealth v. Snow, liquor distilled from the fermented 133 Mass. 575. juice of other fruits than the grape: as apple brandy; peach brandy. 3. An imitation of cognac made from other liquor or materials; as British 50. State < . Rush, 13 R. I. 198; brandy . potato brandy „ See Chambcrlayne's Modern Law of Evidence. S Ton. § 27] PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. 29 judicial knowledge and that the addition of the word " black- berry " to the word "brandy" merely designates a particular kind of brandy. 54 And in another case it is declared that the court will take notice from the commonly accepted definition of the word " brandy " that it is a spiritous and intoxicating liquor, whether it be French brandy, California brandy or any other. 55 So it has been held that the court will lake judicial notice of the fact that apple brandy is intoxicating, 50 and that it is proper to charge that peach brandy will produce intoxication. 57 § 27. Brandy cherries and fruit. Liquor will not lose its character as such by the fact that fruits, for the sale of which preserved in brandy no license is required, are placed in a bottle of liquor for the purpose of evading the law. 5S So a conviction of selling liquor without a license was held to be sustained by proof that the defendant sold brandy cherries in pint and quart bottles containing one-half their capacity of intoxicating liquors. 59 And in another case where liquor was sold in bottles containing brandy cherries and peaches the court said: " If persons were allowed to escape the penalty of this statute by merely adding some other article or ingredient to intoxicating liquors, when made the subject of traffic, it is obvious that the law 54. Fenton v. State, 100 Ind. 598. alcoholic liquor which if drunk to Judicial cognizance will be excess will produce intoxication. taken that brandy is intoxicating. Howell v. State. 124 Ga. 098, 52 S. E. Bradley v. State, 121 Ga. 201, 48 649. S. E. 981 ; Dallas Brewery v. Holmes 58. R a be v. State, 39 Ark. 204, Bros. (Tex. Civ. App. 1908), 112 See Petteway v. State, 30 Tex. Cr. 1!. S. W. 122. 97, 35 S. W. 646. See Chamberlayne's Modern Law of 59. Musick v. State, 51 Ark. 165, Evidence, § 711. 10 S. W. 225, In ► 1 « li i i lt that where in- 65. State v. Tisdale. 54 Minn. 105, toxicating liquor is sold intentionally. 55 N. W. 903. without a license, in bottles partly 56. Thomas v. Commonwealth, 90 filled with brandy cherries, the sale Va. 92. 17 S. E. 7SS. cannot he excused by showing that 57. Peach brandy. — In a case in the vendor believed he had the right Georgia it was held proper to charge to sell it as brandied fruit. the jury that peach brandy is an 3() PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 28 could be evaded with the greatest facility by any person who desired it." 60 § 28. Cider. Cider in its popular sense is defined as the juice of apples, either fermented or unfermented and it is said that hence the terms " sweet cider " and " hard cider " are in popular use to distinguish between the juice of the apple before and after fer- mentation. In strictness, however, the court in this case de- clared, the juice of the apple before fermentation is simply apple juice and it is only by fermentation that it became cider; and, that, when the word cider is used alone in law or commerce it is commonly understood to mean the fermented juice of apples. 61 Cider has been held not to be a spirituous, vinous or malt liquor. 62 And in a case in West Virginia it has been decided that neither cider nor crab cider is included in the terms " spirituous liquors, wine, ale, porter, beer, or any drink of like nature. 63 In a case in Pennsylvania, however, it is decided that the question whether cider proved to have been sold, is vinous or spirituous, is not a question of law to be decided by the court, but a question of fact to be determined by the jury. 64 The question whether 60. Ryall v. State, 78 Ala. 410. when subjected to distillation, it is 61. Eureka Vinegar Co. v. Gazette capable of producing a spirituous Printing Co., 35 Fed. 570, 571. Per liquor, yet the ultimate product is Caldwell, J. no more like cider, than rum is like The Standard Dictionary defines the juice of sugar cane from which it cider as: "The expressed juice of is manufactured, neither is cider the apples, used as a beverage, either be- result of any process of fermentation fore or after fermentation ; also, whatever, nor is it in any proper sometimes, the juice of other fruits; sense a mixture of any liquor other as pear cider." than water, which is common to all «ii. Feldman v. Morrison, 1 111. spirituous liquors wines, ale, porter, App. 460. beer, and all drinks of like nature." <>?" State v. Oliver, 26 W. Va. 422, Per Woods, J. 53 Am. Rep. 79n. The court said: 64. Commonwealth v. Reyburg, 122 "Cider is neither produced by dis- Pa. St. 299, 16 Atl. 351, 2 L. R. A. tillation nor by fermentation, and al- 415. though liable to fermentation, and 6829,30] PARTICULAR LIQUOKS— COMPOUNDS AND MEDICINES. 31 cider is an intoxicating liquor is one of fact for the jury to determine. 05 So it has been declared that whether cider after process of fermentation is completed is an intoxicating liquor depends upon whether or not such beverage, being drank, produces intoxication and that the detenu i nation of this question is one of fact for the jury. 60 And in a prosecution for violation of a city ordinance for selling a certain fluid called peach cider as an intoxicating beverage, it was held to be error to instruct the jury as a matter of law, that if it contained six per cent of alcohol it was intoxicating within the meaning of the ordinance, as this was a question of fact for the jury to be determined by them under proper instructions. 67 § 29. Cider — hard cider. Hard cider is a fermented or excessively fermented liquor and comes within the prohibition of a statute against the sale of fer- mented liquors. 68 Hard cider is also a liquor which may be shown by the evidence to be intoxicating and within the meaning of statutes which forbid the sale of " intoxicating liquors " except under certain prescribed conditions. 69 Where a person denies that hard cider as sold by him is intoxicating, it devolves upon him to remove the presumption of law by evidence. 70 § 30. Cider — statutes as to. By express provisions of the statutes in some states cider has been declared to be an intoxicating liquor. 71 And where cider is 65. Hewitt v. People, 89 111. App. Co. v. Gazette Printing Co., 35 Fed. 367; Commonwealth v. Chappel, 116 570. Mass. 7. See Chamberlayne's Modern Law of 60. State v. Riddle. 54 X. IT. 370. Evidence. S 712. 07. City of Topeka v. Zufall. 40 89. Hewitt v. People, 186 111. 336, Kan. 47, 19 Pac. 359, 1 L. R. A. 57 N. E. 1077: State v. Schaefer, it 387. Kan. 00. 24 Pae. 02. 68. State v. Sehaefer. II Kan. 00, TO. Stale v. Sehaefer. 44 Kan. 00. 24 Pae. 02: People v. Foster. 04 Midi. 24 Pae. 02. 715. 31 X. W. 506: Eureka Vinegar 71. Tn Maine it was classed as an 32 PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 31 by statute made an intoxicating liquor when it contains more than one per cent of alcohol it is held not to be necessary in a prosecution by the state to prove that it does contain more than that per cent. 72 Cider has also been held to be included in the term " intoxicating liquors " under a statute denning the words " intoxicating liquors " as meaning alcohol, ale, wine, beer, spirituous, vinous, and malt liquors and all intoxicating liquors whatever. 73 Where a statute defines " intoxicating liquors " as including " fermented cider " and another section of the statute provides that nothing in the act shall prevent the manufacture, sale and use of cider, but that cider shall not be sold to a habitual drunkard the word cider as used in the latter section has reference to unfermented cider. 74 Again where a person is prosecuted for selling cider in violation of a statute as to the sale of fermented liquors, it has been held to be an immaterial inquiry whether or not the cider had reached a stage of fermentation which rendered it intoxicating. 75 By stat- ute in Vermont the sale of cider at certain places was prohibited without reference to whether it was intoxicating or not. 76 § 31. Gin." Courts will take judicial notice that gin is an intoxicating liquor. So it has been decided that an allegation, in an indict- intoxicating liquor only " when kept or deposited, with intent that the same shall be sold for tippling pur- poses." State v. McNamara, 69 Me. 133; See also State v. Roach, 75 Me. 123; See also Commonwealth v. Dean, 14 Gray (Mass.) 99, where the stat- ute declared that " cider and all wines shall be considered intoxicating liquors." 72. Commonwealth v. McGrath, 185 Mass. 1, 69 N. E. 340; citing Commonwealth v. Brothers, 158 Mass. 200, 206, 33 X. E. 386. 73. State v. Hutchinson, 72 Iowa 561, 34 N. W. 421. 74. state v. Waite, 72 Vt. 10S, 47 Atl. 397; followed in State v. Thorn- burn, 75 Vt. 18, 52 Atl. 1039. 75. People v. Kinney, 124 Mich. 486, 83 N. W. 147 ; citing and follow- ing People v. Adams, 95 Mich. 541, 55 X. W. 461. 7G. State v. Spaulding, 61 Vt. 505, 17 Atl. 844. 77. The Standard Dictionary de- fines gin as: "An aromatic alcoholic liquor distilled from various grains and flavored with juniper berries. The word gin, like rum, is sometimes used generieally, in a bad sense, for alcoholic liquor." §§32,33] PARTICULAR LIQUORS— CO-MI »01 NDS AND MEDICINES. 33 ment, of an unlawful sale of intoxicating liquor, is supported by proof of such a sale of gin, without proof that gin is intoxicating. 78 And it was said by the court in this case : " Xow everybody who knows what gin is, knows not only that it is a liquor, but also that it is intoxicating. And it might as well have been objected that the jury could not find that gin was a liquor, without evidence that it was not a solid substance, as that they could not find that it was intoxicating, without testimony to show it to be bo. No juror can be supposed to be so ignorant as not to know what gin is. Proof, therefore, that the defendant sold gin is proof that he sold intoxicating liquor. 79 Whether a particular article is gin is held not to be a subject requiring an expert, but a matter of general knowledge and any person is competent to testify whether such an article is or is not gin. 80 § 32. Porter. Porter is defined as a very dark brown malt liquor of English origin, essentially the same as ale, 81 and like ale it is said in a case in New York that it is a liquor of which the courts will take notice of its intoxicating character. 82 § 33. Whisky — as a spirituous liquor. Whisky is alcohol mingled with water and other elements, of which the alcohol alone is intoxicating. 83 The fact that whisky T8. Commonwealth v. Peckham, 2 The Standard Dictionary defines Gray (Mass) ol4; See Dallas whisky as "an alcoholic liquor ob- Brewery v. Holmes Bros. (Tex. Civ. tained by the distillation of a fer- App. 1908), 112 S. W. 122. mented starchy compound, usually a Sec Chamberlayne's Modern Law of grain." Evidence, g 711. Whisky is alcohol diluted with T9. Per Met calf. J. water and mixed with other (dements 80. Commonwealth v. Timothy, 8 or ingredients. Marks v. Stale (Ala. Gray (Mass.) 480. 1909), 4^ So. 864. Per Mayfield, J. 81. Standard Dictionary. Meaning of whisky as used in 82. Blatz v. Kohil. aeli. IKi X. V. Pure Food Act.— What IS THE 540. '22 X. E. 1049, 6 L. R. A. f.tii). Meaning OF thi: Term -'Whisky" 83. Commonwealth v. Morgan, 149 UNDEB thi: Pt/be FOOD Act, a\i> the Mass. 314, 21 X. E. 369. Proper Regulations for Branding 34 PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 33 is a spirituous drink is said to be one within the common knowl- Vabious Kinds of Whisky Under the Internal Revenue Act? Decision by President Taft. By the Pure Food Act of June 30, 1906, Congress forbade the introduc- tion into interstate and foreign com- merce of adulterated or misbranded drugs or articles of food, with two objects, one to preserve the health of the people, and the other to prevent their being deceived by label or brand as to the real character of drugs or articles of food offered for sale. Within the definitions of the act po- table liquors are articles of food. An important controversy has arisen in the execution and the application of the act as to whether the branding of certain potable liquors with the name " whisky " is a misbranding within the act. All distilled spirits pay, under the internal-revenue laws, a heavy tax. The tax is measured by a certain rate per proof gallon. Theoretically pure ethyl alcohol is 200° proof. A proof gallon of dis- tilled spirits is half water and half alcohol, or a gallon of 100° proof. Potable strength varies from 90° to 102° or 103°. Distilled spirits are manufactured under the close super- vision of revenue officers and the brands which are placed upon the packages containing the spirits after manufacture are placed there under regulations of the Internal Revenue Bureau. It is, of course, of the high- importance that the internal- revenue law and the pure-food law should be enforced in such a way as to accomplish the purposes of both. In Internal Revenue Order No. 723 (April, l!i()7) directions were given as to how certain distilled spirits should be branded. The effect of this order was to deny the right to the use of the brand " whisky " to any dis- tilled liquor except that which is known to the trade as " straight whisky " and to require the branding of several kinds of liquors distilled from grain as " imitation whisky." The pure-food act does not mention the term " whisky ; " it does not au- thorize any officers to fix a standard in respect to any article of food or liquor. It therefore leaves the ques- tion of what liquor may be properly branded as whisky to those who have to execute the pure-food law and the internal-revenue-law, subject, of course, to a review of the correctness of their action by courts whenever a case between parties litigant, prop- erly within the jurisdiction of such courts shall arise. Attorney-General Bonaparte was asked to pass upon the question of what properly might be included under the brand of whisky within the pure-food law, and ren- dered two decisions in which he in effect limited the proper use of the brand to what is known in the trade as " straight " whisky. So far as appears from Mr. Bonaparte's opin- ions, he accepted a definition of whisky from a dictionary or ency- clopedia, and, in forming and express- ing his opinion, he had not the benefit of any evidence as to the meaning or scope of the term acquired from man- ufacturers, dealers, or consumers in the trade. Internal Revenue Order 723 was founded on Mr. Bonaparte's opinions. A petition was filed in April last by a large number of distillers whose interests were affected, asking that the issue passed upon by Mr. Bona- parte and confirmed by Mr. Roosevelt in Internal Revenue Order No. 723 be reheard on the ground that the meaning of the term " whisky " is one of fact, and is to be properly determ- £ 33] PARTICULAE LIQ1 DS AND MEDICINES. :;:, edge of all men and is one of which the courts will take judicial ined only after consideration of com- petent evidence drawn from those fa- miliar with the trade in which liq- uors are manufactured and Bold. The rehearing was granted, and the mat- ter was referred to Bon. Lloyd Bowers. Solicitor-General, to deter- mine upon evidence to be submitted hy all parties in interest: 1. What was the article called " whisky " as known ( 1 ) to the man- ufacturers, (2) to the trade, and (3) to the consumers at and prior to the date of the passage of the pure- food law ? 2. What did the term " whisky " include? 3. Was there included in the term " whisky " any maximum or mini- mum of congeneric substances as nec- essary in order that distilled spirits should be properly designated whisky? 4. Was there any abuse in the ap- plication of the term " whisky " to articles not properly falling within the definition of that term at and prior to the passage of the pure-food law, which it was the intention of Congress to correct by the provisions of that act? 5. Is the term " whisky " as a drug applicable to a different product than whisky as a beverage? If so, in what particulars? A very full hearing was had he- fore the Solicitor-General and a large amount of evidence was taken, mak- ing a record of more than 1,200 printed pages. The answers of the Solicitor-General to the questions were detailed and exact. I shall not sel them out. It is sufficienl to say that he found from the evidence that whisky, as a term of the trade for many years, included much more than "straight" whisky: that it included "rectified" whisky. "redistilled" whisky, and all distillates of grain re- duced by water to potable strength and containing a sufficienl trace of fusel oil or the congeneric substances accompanying grain distillation to give a distinctive whisky flavor to the liquor: and this whether or not colored by burnt sugar or other harm- less flavoring and coloring matter. But he excluded from the proper meaning and scope of the term " whisky " that product of continuous distillation called "neutral spirits," though reduced to potable strength and colored and flavored by burnt su- gar, on the ground that in such pro- duct there was not enough of the fusel oil or congeneric substances to give to the liquor the distinctive flavor of whisky. He found further that the mixture of neutral spirits with whisky, if a sufficient quantity of fusel oil or congeneric substances remained to retain the whisky flavor, was not an adulteration and did not make it other than whisky. Exceptions were taken by all par- ties to these findings of the Solicitor- General, and the whole record of the evidence has been brought before me for consideration and decision. I in- vile. 1 the Attorney-General and the Secretary of Agriculture to sit with me and hear the arguments. of the importance of the case, I have thought it necessary to read with care the entire evidence adduced. The Solicitor-General has rendered an opinion to justify his findings of greal ability and acumen: and I reach a somewhat different conclusion from him with much reluctance. But I am led to do so by a very clear con- viction as to what the evidence s] Whisky for more than one hundred years has been the mosl general and comprehensive term applied to liquor 36 PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 33 notice and which juries are permitted to find without specific proof distilled from grain. It is derived from the Irish word " Usquebaugh," and for more than a century has been used in Ireland, Scotland, England, and in this country to mean ardent spirits distilled from grain reduced to potable strength. Its flavor and color have varied with the changes in the process of its manufacture in the United States, Ireland, Scotland, and England, and have been varied by the introduction into it of fruit juice and burnt sugar and other substances. It was manufactured originally in what was called a " pot still " by the distil- lation of wort or beer fermented from grain. It was composed of about equal parts of water and ethyl al- cohol and certain substances now called congeneric substances which united were known as fusel oil; and when the distillate was first produced the so-called fusel oil gave to the liquor a very disagreeable odor and a very raw taste. The efforts of those engaged in the manufacture were di- rected toward the reduction of the amount of fusel oil in the product and toward the elimination of the disa- greeable odor and taste produced by it. This was effected for a great many years by passing the distilled spirit through leaching tubs of char- coal, which tended to purify it and re- duce the amount of fusel oil, and sub- sequently rectification was followed by another step — i. e., redistillation — and at all times by the introduction of fruit essences or burnt sugar. Burnt sugar is used in Scotch whisky as well as in American whisky, though not to the same extent or in the same proportion. Between 1850 and 18• Alabama. — Wadsworth v. Dun- nam, 98 Ala. 610, 13 So. 597. Arkansas. — Foster v. State, 36 Ark. 258. Qeorgie.— Colwell v. State, 112 Ga. 75. 37 S. E. 129. Kansas. — State v. Coulter, 40 Kan. 87. 19 Pac. 308. Vermont. — State v. Kezer, 74 Vt. 50, 52 Atl. 116; Paissell v. Sloan, 33 Vt. 656. § ;;sj PARTICULAR LIQUORS— COMPOI NDS AND MEDICINES. 17 used as an intoxicating beverage, then it is within the statute. 10 If liquor is the predominant element, or sufficiently retains its intoxicating character to render the mixture reasonably suscepti- ble of use as a beverage, or as a substitute for the ordinary intoxi- cating drinks, it falls within the statutory prohibition. 11 But where the testimony shows that it has never been used as an intoxi- cant and that it is doubtful whether it could be so used it will not be regarded as an intoxicating liquor. 12 10. Intoxicating Liquor Case, 25 Kan. 751, 37 Am. Rep. 284. See also Wadsworth v. Dunnam, 98 Ala. 610, 13 So. 597. " If the article sold cannot be used as an intoxicating drink, it is not within the prohibition of the stat- ute, although it contains as one of its ingredients some spirituous liquor. The sale of such article is not within the mischief intended to be remedied by the statute, nor within the fair meaning of its language." Common- wealth v. Ramsdcll, 130 Mass. 08. Per Morton, J. Instruction to jury. — It is proper to instruct the jury that if the dis- tinctive character of a liquor " as an intoxicating liquor was so destroyed thai it could not be used as a bever- age, and it became in fact a medicine in tic used for diseases, and of such a character that it could not in reason, be styled or used as an intoxicating drink, its sale was not a violation of law." State v. LafTer, 38 Iowa. 422. In a case in Alabama in an action mi promissory note which was given in settlement of an account for goods sold and delivered, some of the items being for a certain cordial known as "Ginseng cordial" where one of the issues was whether such cordial was intoxicating and therefore its sale prohibited by statute it was held error to instruct the jury that " If the jury believe from the evidence that the compound or cordial included " in the account " was not reasonably suscepti- ble of being used as an intoxicating beverage, then its sale is not prohib- ited by law, and the notes sued for would not be invalid on account of the sale of such bitters." Wadsworth v. Dunnam. 117 Ala. 661, 23 So. 699. 11. Carl v. State, 89 Ala. 93, 8 So. 156. In Arkansas on the trial of an in- dictment for the unlawful sale of in- toxicating liquors where the sale of a certain cordial was proved which the evidence tended to show was an intoxicating compound containing a certain per cent of alcohol or ardent spirits and there was no proof that he was a licensed dealer it was held to be no error to instruct the jury that if they found such cordial was "a compound, or composed in part, of alcohol, and is an intoxicating liq- uor, and was used or could be used as a beverage" they would be auth- orized to convict the defendant and that if they found "that the article sold was not used, or could not be used, as a beverage," they would be authorized to acquit the defendant. Davis v. state. .')() Ark. 17, 6 S. W. 388. 12- Mackall v. District of Colum- bia. 16 App. D. C. 301. State v. LafTer. :!s Iowa 422. Commonwealth v. Ilamsdell, 130 Mass. 68. 48 PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 39 § 39. Compounds — Sale of to be used as a beverage. Intoxicating liquors retain their character as such where they are intended to be sold and used as a beverage, though disguised by some tincture or preparation, so as to have, to some extent, the taste, flavor or appearance of medicines. 13 A decoction though called a bitters or invigorant may be a vinous or spirituous liquor within the meaning of a statute where it has been purchased to be drank as a beverage; is shown to contain whisky or high wines and when so drank produces intoxication. 14 So although a liquid which contains more than the per cent of alcohol stated in an in- toxicating liquor statute may be manufactured for a lawful pur- pose and its sale as a medicine lawful yet, when sold as an intoxi- cating beverage, it is an intoxicating liquor within the meaning of the statute. 15 So the sale of peppermint essence which contains a large per cent of alcohol and which, though generally used as a carminative, may be used as a beverage, and is sold with knowl- edge by the seller that it is bought for the latter use is to be re- garded as an intoxicating liquor within the meaning of a statute. 16 And on the trial of one charged with violating the local option liquor statute, it was held not to be error for the court, in charging on the issue of fact as to the intoxicating nature of the liquor 13. Russell v. Sloan, 33 Vt. 656. travention of the statute; whether 14. w a li v . State, 78 Ala. 417. the parties by their voluntary act 15. State v. Krinski, 78 Vt. 162, do not take the preparation out of 62 Atl. 37. its legitimate use and place it in the 1C. State v. Kezer, 74 Vt. 50, 52 list of intoxicating liquors. The pur- Atl. 116. The court said: "Though pose of the statute is, by prohibiting this itnd many articles made for med- the sale of intoxicating liquors, to icinal, culinary and other purposes prevent their use and restrain intem- contain ;i large per cent of alcohol, perance, and it is a reasonable view they are not made for beverages and that when a medicine, or other prep- fortunately are not often used as aration containing enough alcohol such. * * * But when one of these to make a man drunk, is sold and preparations is sold for the purpose bought for that purpose, it is, by the of intoxication, or the seller has reas- act of the parties, given a status onable cause to believe it was ob- with intoxicating liquors." Per Ty- tained for that purpose, the question ler, J. is whether the sale is not in con- § 40] PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. |g sold, to instruct the jury in substance that the accused, though a licensed druggist, could not legally sell a compound or preparation of intoxicating liquor and other ingredients, if the intoxicating liquor retained its distinctive character and effect, and such com- pound or preparation was reasonably suited to be used as an in- toxicating beverage. 17 § 40. Compounds— Good faith in making sale. Where a compound or preparation which contains whisky is sold in good faith for medical purposes by one authorized to sell medical preparations, it will not ordinarily be considered an in- toxicating liquor within the meaning of a statute. 18 The test is said to be whether the preparation claimed to be a medicine was in fact a medicine and sold in good faith and not as a beverage, or whether it is a sham preparation, disguised as medicine, really an intoxicating liquor and sold as a beverage. 19 If liquors and other ingredients are used and mixed in such manner and propor- tions as to counteract the intoxicating force and character of the liquor, fairly constituting a medicine, and rendering its use as a beverage practically impossible it is not within the statute. 20 So in a case in the federal court it is said in this connection : " The fact therefore that a mixture possesses so much alcohol that per- 17. Bradley v. State, 121 Ga. 201, momvealth v. Ramsdell, 130 Mass. 68. 48 S. E. 981. 20 - Carl v. State, 89 Ala. 93, 8 So. 18. Parker v. State, 31 Ind. App. 156. 650, 68 N. E. 912. Gum camphor and alcohol 10. Bertrand v. State, 73 Miss 51, mixed by a druggist is not a spiritu- 18 So. 545: King v. State, 58 Miss ous liquor within the meaning of a 737_ statute forbidding the sale of " spirit- The fact that a liquor which is in- uous liquors " withoul a license. State tozicating has been sold as a med- v. Haymond, 20 \Y. Va. 18, 43 Am. icine, or that it is attempted to dis- Rep. 787, wherein the court said: "It guise it under the name of a med- certainly was never intended by the icine does not cause it to lose its legislature to prohibit the sale of character as an intoxicating liquor such mixture by the statute, under within the meaning of the statute. which the indictment in this case Gault v. State, 34 Ga. 533. Com- was found." Per Johnson. P. 50 PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 40 sons may become intoxicated by drinking such a quantity as may be drank without imperiling life, cannot be accepted as the sole test by which to determine if the mixture should be classed as • listilled spirits, and dealers therein as liquor dealers. If a prepa- ration is not intended as a beverage, but is put up in good faith as a medicinal preparation and sold as such, and there are reason- able grounds to believe that it possesses curative properties and no more spirits are used in the preparation than are reasonably necessary to extract and hold in solution the medicinal properties of the various drugs employed, such preparation is medicinal, and does not lose its character as such, although it is intoxicating when used to excess." 21 So in Vermont it is decided in an early case that an act prohibiting traffic in intoxicating drinks, does not apply to medicinal preparations in which alcohol is used in quan- tities capable of producing intoxication, such as bitters, tinctures and others of a like character which are in good faith made and sold for medicinal purposes. 22 So where a druggist without license to sell intoxicating liquors, and without a prescription from a physician, sold a compound consisting of whisky and gum ginacum to be used, and which was used, by the purchaser as a remedy for rheumatism the sale was held not to be in violation of a statute making unlawful the sale of intoxicating liquors without a license. 23 In Connecticut, however, under a statute providing that tht term " spirituous and intoxicating liquors " as used therein shall be held to include " all mixed liquors of which a part is spirituous and intoxicating " it has been decided that compounded medicines of which a part is spirituous liquor, prepared and sold by a druggist are included therein. 24 21. United States v. Stubblefield, 22. R lIsse ll v. Sloan, 33 Vt. 656. 40 Fed. 454. Per Thayer, J., holding 23. Parker v. State, 31 Ind. App. that, "Lemon Ginger" and "Empire 650, 68 N. E. 912. Tonic Bitters were not, under the 24. State v. Gray, 61 Conn. 39, 22 above rule, distilled spirits. Atl. 675. § 41] PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. 51 § 41. Compounds — whether intoxicating liquor — question of fact — Judicial notice. Whether or not a compound containing intoxicating liquor is of such a character that a sale thereof is in violation of the law is not a question of law for the court but of fact for the jury. 25 So as to articles not known to the United States dispensatory, or other similar standard authority, compounds of intoxicating liquors with other ingredients, whether put up upon a single pre- scription and for a single case, or compounded under a given for- mula and sold under a specific name, such as bitters, cordials and tonics, whether they are within or without a statute regulating and restricting the sale of intoxicating liquors, is a question of fact for the jury and not one of law for the court. 26 So it was held to be a question of fact for the jury whether " ginseng cordial " was within the meaning of such a law, it not being what was generally known as intoxicating liquor nor on the other hand what was known as medicine, or as a toilet or culinary article. 27 And whether or not a mixture of whisky and other in- gredients is of an intoxicating nature so as to be within the mean- ing of an intoxicating liquor statute is one of fact for the jury. 28 Again in the case of bitters or liquors though intoxicating it has been declared that the court can not judicially know or assume as a matter of law that they are within the terms of a statute regu- lating the sale of spirituous, vinous or malt liquors. 29 And in a case in Florida it is said : " we are at least very much inclined to the opinion that we cannot take judicial notice that either orange mint, or the elixir of orange mint, or whatever might fall under the classification of " Patent Alcoholic Bitt< rs " is intoxicat- 25. State v. Gregory, 110 Iowa 624, - s - Bradley v. State, 121 Ga. 201, 82 N. W. 335. 48 S. E. 981. 26. Tntoxicatin- Liquor Cases, 25 -*'»• Allred v. State. 89 Ala. 112, 8 Kan. 751. 37 Am. Rep. 2S4. So. 56; Blankensfcip v. Sfate. 03 Ga. 27. Wadsworth v. Dunnam, 98 Ala. 814, 21 S. E. 130. 610, 13 So. 597. 52 PARTICULAR LIQUORS— COMPOUNDS AND MEDICINES. [§ 42 ing. 30 But ill Kentucky it is declared by the court in a case that without evidence it considers that it is a matter of common knowl- edge that Jamaica ginger is an intoxicant and a spirituous liquor and that it is hardly more necessary to introduce evidence of that fact that it would be of whisky. 31 § 42. Compounds — whether intoxicating liquor — conclusion. From the preceding sections and cases cited therein it will be seen that different elements are given especial prominence in de- termining the question whether a compound containing alcohol or intoxicating liquor is in fact an intoxicating liquor wthin the meaning of a statute regulating or prohibiting the sale of such liquors. In the consideration of this question regard must be had to the intent and purpose of the statutes upon this subject. They were passed by the state in the exercise of that broad power, known as the police power, in the exercise of which the state is supposed to act for the benefit of the public health, safety, and morals and to regulate and control those matters which may affect the same injuriously. The mere fact that a compound may con- tain a considerable proportion of alcohol or whisky while it may be a factor to be considered in determining whether such com- pound comes within the meaning of the statute should not as a general rule be a controlling element. Nor do we think should the fact that the compound may be used as a beverage. It would seem that by far the most important element would be the good faith in making the sale, and as a fact to be considered upon the question of good faith the proportion of alcohol to the other ingredi- ent or ingredients may be taken into consideration. A compound which is of a medicinal character may contain a large proportion of alcohol yet if sold in good faith for the purpose of medicine, the fact of the large proportion of alcohol therein or the fact that it 30. Butler v. State, 25 Fla. 347, 81. Mitchell v. Commonwealth, 106 6 So. 67. Ky. 602, 51 S. W. 17. § 42] PARTICULAR LIQUORS- COMPOUNDS AND MEDICINES. 53 may be used as a beverage should not be controlling as bringing it within the meaning of the words " spirituous liquors " or " in- toxicating liquors," as used in the statutes. The object of such statutes, whether of regulation or prohibition, is to control the sale of those liquors which are ordinarily known as intoxicating liquors and which are drank as beverages. The mere fact that a compound may be drank as a beverage should not control. On the other hand, however, if it appears that the compound is a sham one, and given the name of a medicine as a mere cover for its sale and that it is in fact sold for the purposes of using as a bever- age then it should be considered as within the meaning of such a statute. And as a general rule the question whether a compound is an " intoxicating liquor " or a " spirituous liquor " as these words are used in a statute should be one of fact for the jury to determine, giving especial prominence to the question of the good faith of the parties in the making of the sale, taking into consideration the circumstances in connection with the sale and in some cases, the proportion of alcohol or whisky as bearing upon the question of good faith. As an exception to this rule just stated, reason favors the doctrine stated in a preceding section that whatever is generally and popularly known as medicine, an arti- cle for the toilet or for culinary purposes, recognized, and its formula prescribed, in a dispensatory of standard authority, and not among the liquors ordinarily used as intoxicating beverages, is not within the meaning of an intoxicating liquor law and may be so declared as a matter of law by the court-. : - 32. See in this connection Cham- berlayne'a Modem Law of Evidence, §§ "10, 717. 54 CONSTITUTIONAL PROVISIONS AFFECTING LAWS. [J 43 CHAPTER III. UNITED STATES CONSTITUTIONAL PROVISIONS AFFECTING LAWS. Section 43. Power of Congress. 44. Fourteenth Amendment to Federal Constitution as affecting power of State. 45. Fourteenth Amendment does not prevent state legislation as to liquor traffic. 46. Other Federal Constitutional provisions as affecting right of state. 47. Federal Constitution as affecting right of State continued. Par- ticular laws. 48. Power of state as affected by United States constitution— com- merce. 49. Vance v. Vandercook. Rules stated in. 50. Power of state as to interstate shipments generally. 51. Sales in original packages — Prior to Wilson Act. 52. Keeping liquors in state for sale in another state. 53. Can not forbid shipment into state. 54. Wilson Act — effect and construction of. 55. Wilson Act does not prevent right to order and receive. 56. Statute limiting rigbt to order— application to state official. 57. Wilson Act— words " upon arrival " construed. 58. State statute as to place of delivery and sale. 59. Soliciting of orders. GO. As to right to advertise. Sec. 43. Power of Congress. Under the full and comprehensive power conferred upon Con- gress it has been said that it has unquestionably the power to exclude intoxicating liquors from any or all of its territories or limit their sale under such regulations as it may prescribe and that it may legislate in accordance with the special needs of each locality, and vary its regulations to meet the conditions and cir- § 43] CONSTITUTIONAL PROVISIONS AFFECTING LAWS. 55 cumstances of the people. 1 So it has been determined by the United States Supreme Court that the act of Congress making it an offense to sell ardent spirits to an Indian was constitutional and based upon the power of Congress to regulate commerce with the Indian tribes and that this power extends to the regulation of commerce with the tribes and the individual members of such tribes though the traffic and the Indian with whom it is carried on are wholly within the territorial limits of a state. 2 And in this connection it was also determined that no state can by either its constitution or other legislation, withdraw the Indians within its limits from the operation of the laws of Congress regulating trade with them, notwithstanding any rights it may confer on such Indians as electors or citizens. 3 So Congress has power to prohibit the introduction and sale on Indian reservations of malt liquors though the proof before a jury may show that such liquors are not intoxicating. 4 But in the case of land within a state which is allotted in severalty to an Indian and held in trust by the United States it is decided that, citizenship being con- ferred upon the allottee, the United States surrenders to the state the control over the Indian and that the land is no longer Indian country within the meaning of that term as used by Congress and construed by the courts. 5 It is said by the United States 1. Edleman v. United States, 86 Terr. 474, 52 S. W. 38. The court Fed. 456, 30 C. C. A. 186. Per Mor- said: "No constitutional provision row, J. See Nelson v. United States, has been pointed out to us prohibit- 30 Fed. 113. ing the exercise by congress of this 2. United States v. Holliday, 3 power. Here the sovereignty of the Wall. (U. S.) 407, IS L. Ed. 182, United States is complete, full and holding also thai by the act of Feb. undivided. Whatever the federal and 12, 1862, Congress intended to make state legislatures combined may do it penal to sell spirituous liquor to in a state, the federal congress alone an Indian under charge of an Indian may do here. All of the police powers agent although it was sold outside of exercised by the states in their juris- any Indian reservation and within the dictions is exercised by the federal limits of a state. government in this jurisdiction." Per «• United States v. Holliday, 3 Clayton. J. Wall (U. S.) 407, 18 L. Ed. 182. 5 « United States v. Sulton, 16S Fed. 4. United States v. Cohn, 2 Ind. 253, citing United States v. Four 50 CONSTITUTIONAL PROVISIONS AFFECTING LAWS. [§ 44 Supreme Court : " We are of the opinion that when the United States grants the privileges of citizenship to an Indian, gives to him the benefit of and requires him to be subject to the laws, both civil and criminal, of the state, it places him outside the reach of police regulations on the part of Congress ; that the emancipation from Federal control thus created cannot be set aside at the in- stance of the government without the consent of the individual Indian and the State, and that this emancipation from Federal ocntrol is not affected by the fact that the lands it has granted to the Indian are granted subject to a condition against alienation and encumbrance, or the further fact that it guarantees to him an interest in tribal or other property." 6 § 44. Fourteenth Amendment to Federal Constitution as affecting power of State. The Fourteenth Amendment to the United States Constitution provides that " no stale shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The privileges and immunities guaranteed to the citizen by this amend- ment relate to those rights which may be called fundamental, those which belong of right to all citizens of a free government, and which have, at all times, been enjoyed by the citizens of the several states. 7 The fourteenth amendment was never designed Bottle of Sour Wash Whisky, 90 Fed. an Indian do not apply to an Indian 720; Ex parte Crow Dog, 109 U. S. to whom an allotment of land has 550, 3 Sup. Ct. 396, 27 L. Ed. 1030; been made or who has become a cit- United States v. Martin, 14 Fed. 817; izen of the state. Forty Three Gallons of Cognac 7. Meehan v. Excise Commission- Brandy, 11 Fed. 47. ers, 73 N. J. L. 382, 64 Atl. 689. «• Matter of Heff, 197 U. S. 488, This amendment does not define the 25 Sup. Ct. 506, 49 L. Ed. 848, hold- states of any of those powers of police ing that the police regulations of which were originally reserved at the Congress as to the sale of liquor to time of the adoption of the constitu- § 45] CONSTITUTIONAL PROVISIONS AFFECTING LAWS. 57 to interfere with the exercise by a state of its exclusive right to make all proper police regulations to promote the health, peace, morals, education or good order of its people, so long as some par- ticular provision of the Constitution of the United States is not infringed. 8 § 45. Fourteenth Amendment does not prevent state legislation as to liquor traffic. The privileges and immunities of citizens of the United States are priveleges and immunities arising out of the nature and es- sential character of the national government, and granted or secured by the constitution of the United States and the right to sell intoxicating liquors is not one of the rights growing out of such citizenship. 9 As we have stated there is no inherent right to sell or manufacture intoxicating liquors. Each and every state has the right not only to prohibit the sale but also to prohibit the manufacture of such liquors and such a statute is not violative of the provision of the United States constitution that a person shall not be deprived of his property without due process of law. 10 And statutes passed by a state in the exercise of its police power or regulations by local governmental agencies authorized by the state which are for the purpose of regulation of the liquor traffic and prescribing the conditions under which it may be carried on tion, and was not designed to inter- In re Rahrer, 140 U. S. 545, 555, 11 fere with the power of the state to Sup. Ct. 865, 35 L. Ed. 572. Per protect the lives, liberty and property Mr. Chief Justice Fuller, of its citizens, and to promote their «• State v. Bixman, 162 Mo. 1, 39, health, morals, education and good 62 S. W. 828. Per Gantt, J., citing order. Ciozza v. Tiernan, 148 U. S. Barbier v. Connolly, 113 U. S. 27, 657, 13 Sup. Ct. 721, 37 L. Ed. 599. 28 L. Ed. 923, 5 Sup Ct. 357. Bell's "It is not to be doubted that the Cap R. Co. v. Pennsylvania, 134 U. S. power to make the ordinary regula- 238, 33 L. Ed. 892, 10 Sup. Ct. 533. tions of police remains with the in- »• Giozza v. Tiernan, 14S 1". s. 657, dividual states and cannot be assumed 13 Sup. Ct. 721, 37 L. Ed. 599. Per by the national government and that Mr. Chief Justice Puller, in this respect it is not interfered 10 - Busch v. Webb, 122 Fed. 655. with by the Fourteenth Amendment. 58 CONSTITUTIONAL PROVISIONS AFFECTING LAWS. [§ 46 have been generally sustained and are not a violation of the Four- teenth Amendment of the United States Constitution. 11 § 46. Other Federal Constitutional provisions asaffecting right of state. A star nte which prohibits manufacturers and others from selling or keeping for sale within the state, liquors manufactured or bought by them previous to the passage of the act is not uncon- stitutional as an ex post facto law. 12 And such a law is held not to impair the obligation of contracts within the meaning of the clause in the United States constitution forbidding such legis- 11. United States. — Gray v. Con- necticut, 159 U. S. 74, 15 Sup. Ct. 985, 40 L. Ed. 80; Kidd v. Pearson, 128 U. S. 1, 9 Sup Ct. 6, 32 L. Ed. 346; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. California. — Ex parte Campbell, 74 Cal. 20, 15 Pac. 318, 5 Am. St. Rep. 418. Kansas. — State v. Durein, 70 Kan. 1, 78 Pac. 152. Kentucky. — Burnside v. Lincoln County Court, 86 Ky. 423, 6 S. W. 276. Louisiana. — State v. Mattle, 48 La. Ann. 728. 19 So. 748. Missouri. — Ex parte Swann, 96 Mo. 44, 9 S. W. 10. Ohio. — Adler v. Whitbeck, 44 Ohio St. 539, 9 N. E. 672. South Dakota. — State v. Brennan, 2 S. D. 384, 50 N. W. 625. Tennessee. — Webster v. State, 110 Tenn. 491, S2 S. W. 179. Vermont. Sin to v. Hodgson, 66 Vt. 135, 28 Ail. 1089. Objection not sufficiently specific. — Tn Indiana it lias been de- clared that an objection that an act, as applied to intoxicating liquors, is unconstitutional because it authorizes the taking of one's property without due process of law is too indefinite to present any question as a mere gen- eral statement without specific and definite reasons specifically applied present no question for decision. Rose v. State, (Ind. S. C. 1909), 87 N. E. 103. 12. State v. Paul, 5 R. I. 185. The court said: "That it does in effect prohibit manufactures and others who have manufactured or bought liq- uor before the passage of the act from selling it or keeping it for sale within the state afterwards, and thus affects injuriously to them the value of such property on their hands does not make it an ex post facto law in the constitutional sense. To meet the well settled definition of such a law, a statute must not only retroact, but must retroact by way of criminal punishment, upon that which was not a crime before its passage. Calder v. Bull, 3 Dall. 386 ; Carpenter v. Penn- sylvania, 17 How. 456. As the ar- gument does not suppose that the law in question retroacts even except by the civil consequences of lessening the value of certain property owned in the state at the time of its pas- sage, it is evident that the objection has no foundation." Per Ames, C. J. § 47] CONSTITUTIONAL PROVISIONS AFFECTING LAWS. 59 lation. 18 And generally il may be Btated thai a state law prohib- iting the manufacture and sale of intoxicating liquors is no1 re- pugnant to any clause of the United States constitution. 11 § 47. Federal Constitution as affecting right of State continued. Particular laws. The inhibition in the United States constitution that no person shall bo deprived of his life, liberty, or property without due proc- ess of law does not prevenl a state from providing by a general legislative enactment that a license fee shall be necessary to enable one to carry on the traffic in intoxicating liquors. 15 In construing provisions of statutes forbidding the sale of liquor without a license and providing that the granting of a license for its sale to a druggist shall be discretionary with the county commissioners it has been decided that the construction of these statutes which makes them applicable to a licensed pharmacist does not render them unconstitutional as violating either the state constitution or the Fourteenth Amendment of the United States constitution. 16 And this amendment is not violated by a statute forbidding the sale of spirituous, vinous and mult liquors in quantities less than 13. State v. Paul, 5 \l. I. 185. Tlie protect the community from fraud, court said: " The argument here pro- and by giving credit to its produe- ceeds upon the false assumption, that tions, to insure a safe and prosperous rights of property are absolute and commerce in them abroad. Whal these unqualified, and not restricted, as they regulations shall he always suppos- necessarily must he by the greater ing that they do not directly conflict right of the community, to have them with positive constitutional prohibi- bo exercised within it as to he com- tions, both the constitution of tin-; patible with its well being. ** * Our state and the constitution of the hit ions of internal police and of United Slate- properly leave to the trade, adapted by positive law to lawmaking power to decide." Per our condition, and changed by it ac- Ames. (\ J. cording to our changing circumstan- "• Bartemeyer v. Iowa, 18 Wall. ces, are designed in great part to con- (TJ. S.) ''^ ! >. 21 I.. Ed. 929. trol the use of property to such i~>- Appeal of Allyn, (Conn. 1909), modes as are consistent with lli*-" 71 Atl. 794. health and morals of (lie community, *6- State v. Cray. 61 Conn. 39, 22 and the sale of it in such form ami Atl. (575. with such guards a- ai ty to 00 CONSTITUTIONAL PROVISIONS AFFECTING LAWS. [§ 47 one quart without first having obtained a license therefor. 17 In Kansas it has been decided that the statutes of that state regulat- ing the sale of intoxicating liquors are not violative of the Four- teenth Amendment because of the discretion vested in the probate judges of the respective counties over the subject of granting permits to sell intoxicating liquors for medical, mechanical and scientific purposes. 18 Statutes conferring such a discretion in officials are held to confer a judicial discretion which is to be exercised only with reference to the facts and circumstances of each case and not prejudicially or capriciously. 19 Again it has been held that the state, as a police regulation, may prohibit the sale of one kind of intoxicating liquor and allow the sale of an- other kind and that the prohibition of wines made from fruits grown in other states is no invasion of the privileges and immuni- ties of the citizens of the several states as conferred by the Federal Constitution. 20 Again in an early case in Connecticut it is de- 17. Giozza v. Tiernan, 148 U. S. 657, 13 Sup. Ct. 721, 37 L. Ed. 599. 18. State v. Durein, 70 Kan. 1, 78 Pac. 152. (This case pending in U. S. S. C. on writ of ever allowed June 19, 1905. Look up.) 19. State v. Gray, 61 Conn. 39, 22 Atl. 675 ; State v. Durein, 70 Kan. 13, 80 Pac. 987. 2". State v. Stucker, 58 Iowa 496. In Arkansas an act regulating the sale of liquor provided as follows: " This act shall not be held to apply to one who manufactures or sells wines in this state from native grapes < CONSTITUTIONAL PROVISIONS AFFECTING LAWS. [§ 49 Congress under the constitution. It cannot without the consent of Congress, express or implied, regulate commerce between its people and those of the other states of the Union in order to effect its end, however desirable such a regulation might be." 24 And liquor however obnoxious and hurtful it may be in the judgment of many is a recognized article of commerce. 25 And a state law passed in good faith for the suppression the liquor traffic is not to be condemned as unconstitutional because it may incidentally hamper the freedom, or lessen the extent of interstate commerce. 26 So the fact that the manufacturer of intoxicating liquors intends to export them does not affect the right of the state to prohibit the manufacture of such liquors it being declared that the intent of the manufacturer does not determine the time when the article or product passes from the control of the state and belongs to commerce. 27 The question may be still considered in each case as it arises, whether the fact that Congress has failed in the par- ticular instance to provide by law a regulation of commerce among the states is conclusive of its intention that the subject shall be free from all positive regulation, or that, until it posi- tively interferes, such commerce may be left to be freely dealt with by the respective states. 28 § 49. Vance v. Vandercook. Rules stated in. In Vance v. Vandecook it is declared by the United States Supreme Court to be an elementary proposition beyond dispute that the respective states have plenary power to regulate the sale of intoxicating liquors within their borders and the scope 24. Bowman v. Chicago & N. W. R. 26. License Cases, 5 How. (U. S.) Co., 125 U. S. 165, 8 Sup. Ct. 689, 504, 12 L. Ed. 256. L062, 31 L. Ed. 700. Per Mr. Justice 27. Kidd v. Pearson, 128 U. S. 1, 9 Matthews. Sup. Ct. 6, 32 L. Ed. 346. 25. Adams Express Co. v. Ken- 2S - Bowman v. Chicago and N. W. tucky, 214 U. S. 218, 29 Sup. Ct. 633. R- Co., 125 U. S. 465, 8 Sup. Ct. 689, Per Mr. Justice Brewer. 1062, 31 L. Ed. 700. Per Mr. Justice Matthews. § 49] CONSTITUTIONAL PROVISIONS AFFECTING LAWS. 63 and extent of such regulations depend Bolely on the judgment of the law-making power of the states, provided always, they do not transcend the limits of state authority by invading rights which are secured by the constitution of the United Stat -. and provided further, that the regulations as adopted do not operate as a discrimination against the rights of residents or citizens of other states of the Union. 29 The court also de- clared that equally well established is the proposition that the right to send liquors from one state into another, and the act of sending the same is Interstate commerce, the regulation whereof has been committed by the constitution of the United States to Congress, and, hence, that a state law which denies such right, or substantially interferes with or hampers the same, is in conflict with the Constitution of the United States. And it was also said that the settled doctrine is that the power to ship merchandise from one state into another carries with it as an incident, the right in the receiver of the goods to sell them in the original packages, any state regulation to the contrary notwithstanding; that is to say, that the goods received by Interstate Commerce remain under the shelter of the Interstate Commerce laws of the Constitution, until by a sale in the original package they have been commingled with the general mass of property in the State. The court how- ever said as to this last proposition that while generally true, it is no longer applicable to intoxicating liquors, since Congress in tlie exercise of its lawful authority has recognized the power of the several states to control the incidental right of sale in the original packages, of intoxicating liquors, shipped into one state from another, so as to enable the state to prevent the exercise by the receiver of the accessory right of selling intoxicating liquors 20. Vance v. Vandercook Co.. 170 438, 444. is Sup. Ct. 674, 42 L. Ed. TJ. S. 438, 444. IS Sup. Ct. 074. 42 lino. Per Mr. Justice White, quoted L. Ed. 1100. Per Mr. Justice White. in Adams Express Co. v. Kentucky, Vance v. Vandercook Co.. 170 U. S. 214 U. S. 218, 222, 29 Sup. Ct. 033. 64 CONSTITUTIONAL PROVISIONS AFFECTING LAWS. [§ 50 in original packages except in conformity to lawful state regula- tions. In other words by virtue of the act of Congress, the re- ceiver of intoxicating liquors in one state, sent from another, can no longer assert a right to sell in defiance of the state law in the original packages, because Congress has recognized to the con- tray. § 50. Power of state as to interstate shipments generally. Though a state is bound to admit an article imported under the laws of Congress it is not bound to find a market for its sale. 30 It is decided however in a recent case that the states are not au- thorized to declare when interstate shipments of liquors shall become subject to state control. Congress has the exclusive power to fix the time when such shipments lose their interstate character and become subject to such control. 31 But in this connection it has been declared by the United States Supreme Court that though a liquor sold may be an import from another state, and Congress have clearly the power to regulate such importations, under the grant of power to regulate commerce among the several states, yet Congress having made no regulation on the subject, the traffic in the article may be lawfully regulated by the state as soon as it is landed in its territory, and a tax imposed upon it, or a license required, or the sale altogether prohibited, according to the policy which the state may suppose to be its interest or duty to pursue. 32 And in an early case in Delaware it was held that whether an article imported is sold by the importer in the original cask or 30. State v. Allmond, 2 Houst. as such. Brown-Foreman Co. v. Com- (Del). 612. monwealth, 30 Ky. Law Rep. 793, While the legislature cannot reg- 101 S. W. 321. ulate interstate commerce, it may 31. McCord v. State, (Okla. 1909), regulate the occupation of rectifying 101 Pac. 280. within the state, and provide against 32. License Cases, 5 How. (U. S.) rectified whisky made elsewhere be- 504, 586, 12 L. Ed. 256. Per Mr. ing brought into the state and labelloil Chief Justice Taney, as whisky made in the state and sold § 51] CONSTITUTIONAL PROVISIONS AFFECTING LAWS. gg package, or is broken up for retail trade it became subject to the state laws and may be taxed or the sale of it prohibited. 33 § 51. Sales in original packages — Prior to Wilson Act. A statute which prohibits the selling and keeping for sale of intoxicating liquors and which does not except from the prohibi- tion the selling and keeping for sale of imported liquors in the original packages has been held to be void as to importers of such liquors who are selling or keeping for sale liquor in such pack- ages. 34 And in a case in the United States Supreme Court where the constitutionality of a prohibition law was being considered the court decided that in so far as it applied to a sale in original packages by the importer it violated the provision in the United States Constitution giving Congress power to regulate commerce with foreign nations and among the several states. 35 But a statute which permits the importation of intoxicating liquors in the original packages wheh may be kept for sale by the importer and which permits the manufacture of such liquors for sacra- mental and medical purposes but not for transportation outside the state borders is not a regulation of commerce in violation of the Federal Constitution. 36 A discriminating tax imposed by a state operating to the disadvantage of the products of other states when introduced into the first mentioned state, is, in effect, a regulation in restraint of commerce among the states, and as such is a usurpation of the power conferred by the Constitution upon the Congress of the United States. 37 ,t:{. State v. Allmond, 2 Houst. by a uniform system, so long as (Del.) G12. Congress does not pass any law to 34. State v. Amery, 12 R. I. 64, regulate it, or allowing the states to following 5 How. (U. S.) 504. do so, it thereby indicates its will 35. Leisy v. Hardin, 135 U. S. 100, that such commerce shall be free and 10 Sup. Ct. 681, 34 L. Ed. 128, Chief untrammelled." Justice Fuller said. "Inasmuch as 30. Kidd v. Pearson, 128 r. S. 1. 9 interstate commerce, consisting in the Sup. Ct. 6, 32 L. Ed. 34(i. transportation, purchase sale and ex- 37. Walling v. Michigan, 116 U. S. change of commodities, is national in 446, 455, 6 Sup. Ct. 454, 29 L. Ed. its character, and must be governed 691. Per Mr. Justice Bradley. 66 CONSTITUTIONAL PROVISIONS AFFECTING LAWS. [§§52,53 § 52. Keeping liquors in state for sale in another state. A law which forbids the keeping of intoxicating liquors within a state for sale in another state is not an interference with interstate commerce it being declared that it is no -more so than a law which forbids the sale in one state of liquors imported from another. 38 And a statute prohibiting the keeping of liquors within the state for sale has been held not to apply to liquors which are being transported through the state not to those which are being stored within the state for the purpose of exporting them. 39 § 53. Can not forbid shipment into state. The power to regulate or forbid the sale of a commodity, after it has been brought into a state, does not carry with it the right and power to prevent its introduction by transportation from an- other state. 40 So it has been decided by the United States Su- preme court that a statute forbidding any common carrier to bring within the state for any person, or persons or corporation any intoxicating liquors from any other state or territory of the United States without first having been furnished with a certifi- cate under the seal of the county auditor of the county to which said liquor is to be transported or is consigned for transportation, certifying that the consignee or the person to whom said liquor is to be transported, conveyed, or delivered is authorized to sell intoxicating liquors in such county is to be regarded as a regula- tion of commerce although it was not adojDted expressly for the purpose of regulating commerce between its citizens and those of other states but as subservient to the general design of protect- ing the- health and morals of its people, and the peace and good order of the state, against the physical and moral evils resulting 38. State v. Fitzpatrick, 16 R. I. 4o. Bowman v. Chicago & N. W. 54. 50, 11 Atl. 767. R. Co., 125 U. S. 405, 8 Sup. Ct. 689, K>. State v. Fitzpatrick, 16 R. I. 1062, 31 L. Ed. 700. 54, 11 Atl. 767. § 54] CONSTITUTIONAL PROVISIONS AFFECTING LAWS. G7 from the unrestricted manufacture and sale within the state of intoxicating liquors. And it was declared thai it was impossible to justify such a statute by classifying it as an inspection law or as a regulation of quarantine or a sanitary provision for the pur- pose of protecting the physical health of the community, or a law to prevent the introduction into the state of disease, contagious, infectious or otherwise. 41 And in Kentucky it has been decided that a railroad operated in that state whose line extends into a foreign state, is engaged in interstate commerce, and may convey spirituous liquors from such foreign state to the consignee in local option territory in Kentucky, and the question of the ship- ment on the part of the consignee being a trick or device to evade the local option law, has no place in the transaction so far as the common carrier is concerned. 42 And a statute by which it is made an offense to sell, lend, give, procure for, or furnish intoxicating liquors to any person who is an inebriate or in the habit of becom- ing intoxicated or drunk in so far as it applies to a common carrier transporting into such state from another state and delivering it to a person within the description of the statute is in conflict with the commerce clause of the Federal Constitution. 45 § 54. Wilson Act — effect and construction of. In order to enlarge the power of the states in their legislative action in regard to interstate shipments of intoxicating liquors Congress in 1890 passed an act known as the Wilson Act by which the states in the exercise of their police power were enabled to pass regulations or prohibitory measures applicable to such ship- ments upon their arrival whether in original packages or other- wise and which in effect nullified, so far as intoxicating liquors 41. Bowman v. Chicago & N. W. R. 48. Adams Express Co. t. Ken- Co.. 125 U. S. 465. 8 Sup. Ct. 080, lucky. 21 I U. S. 218, 29 Sun. Ct. 633, 1602, 31 L. Ed. 700. reversing Adams Express ■ •>. v. Com- 42. Cincinnati, X. 0. & T. P. P.. monwealth, 124 Ky. 182, 87 S. W. Co. v. Commonwealth, 31 Ky. L. R. 1111. Or. 4. 104 S. W. 304. 68 CONSTITUTIONAL PROVISIONS AFFECTING LAWS. [§ 54 were concerned, prior decisions as to rights of sale of these ship- ments in the original packages." In reference to the " Wilson Act," 4i the validity of which was sustained, 45 it is said that it goes far to remove intoxicating liquors from the protection of the commerce clause of the United States Constitution and to give full effect to state legislation concerning them. 46 And in a recent case in the United States Supreme Court it is said : " It is settled by a line of decisions of this court, noted in the margin, that the purpose of the Wilson Act as a regulation by Congress of interstate commerce, was to allow the States, as to intoxicating liquors, when the subject of such commerce, to exert ampler power than could have been exercised before the enactment of the statute. In other words that Congress sedulous to prevent its exclusive right to regulate commerce from interfering with the power of the states over intoxicating liquor, by the Wilson Act adopted a special rule enabling the states to extend their authority 44. Act. Aug. 8, 1890 C. 728, 26 Stat. 313; U. S. Comp. St. 1901, p. 3177. This act was entitled " an act to limit the effect of the regulation of commerce between the several states and with foreign countries in certain instances." It provided as follows: "That all fermented, distilled or other intoxicating liquors transported into any State or Territory, or re- maining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of sur-h State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original pack- ages or otherwise." 2G St. 313. 45. In Re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572. 46. State v. J. P. Bass Pub. Co., 104 Me. 288, 71 Atl. 894, wherein the court says in this connection per Emery, C. J.: "Decisions of United States Courts upon the subject made prior to the passage of that act are now inapplicable and need not be con- sidered. Since the Wilson Act the state may prevent the sale within its limits of intoxicating liquors in the original package, and to that end may seize them in such packages the mo- ment they are delivered. Also to fur- ther the welfare of its people, the state may now prohibit the solicitation within the state of orders for the purchase of liquors without the state. This seems to be settled by the recent decision of the United States Su- premo Court in Delamater v. South Dakota, 205 U. S. 93, 27 Sup. Ct. 447, 51 L. Ed. 724." §§55,50] CONSTITUTIONAL PROVISIONS AFFECTING LAV. gg as to such liquor shipped from other states before it became com- mingled with the mass of other property in the State by a sale in the original package." 47 Under the Wilson Act the power of the state to prohibit the sale of liquor within its borders applies to liquor shipped from one state into another after delivery and before the sale in the original package. 48 § 55. Wilson Act does not prevent right to order and receive. The Wilson Act was not intended to and did not recog- nize the right of the legislature of a state to forbid one to contract for liquors in another state and receive the liquors in his own state for his own use and not for sale. 49 The state cannot prohibit a citizen of the state from ordering and having shipped to him from another state intoxicating liquor for his own personal use and consumption and which is not intended for sale, barter or exchange. 50 § 56. Statute limiting right to order — application to state official. A statute which provides that one who desires to order liquor for his own use must first communicate his desire to a state chemist and which deprives any non-resident of the right to ship by means of Interstate commerce any liquor into the state 47. Delamater v. South Dakota, 205 L. Ed. 925 ; Foppiano v. Speed, 199 U. S. 93, 98, 27 Sup. Ct. 447, 51 L. U. S. 501, 26 Sup. Ct. 138, 50 L. Ed. Ed. 724. Per Mr. Justice White. The 288; Heyman v. Southern Ry. Co., cases referred to in the above extract 203 U. S. 270, 27 Sup. Ct. 104, 51 arc the following: In re Rahrer, 140 L. Ed. 178. U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 48. Dolamator v. South Dakota, 205 572; Rhodes v. Iowa, 170 U. S. 412, U. S. 93, 27 Sup. Ct. 447, 51 L. Ed. 18 Sup. Ct. 664, 42 L. Ed. 1088; 724. Vance v. Vandercook Co., 170 U. S. 4f>. Dolamator v. South Dakota, 205 438, 18 Sup. Ct. 674. 42 L. Ed. 1100; V. S. 93, 27 Sup. Ct. 447. 51 L. Ed. American Express Co. v. Iowa, 196 724: Vanco v. Vandercook Co., 170 U. S. 133, 24 Sup. Ct. 182, 49 L. Ed. U. S. 438, 18 Sup. Ct. 674, 42 L. Ed. 417; Adams Express Co. v. Iowa, 196 1100. U. S. 147, 25 Sup. Ct. 185, 49 L. Ed. BO. Schwedes v. State, (Okla. 424; Pabst Brewing Co. v. Crenshaw, 1909), 99 Pac. 894. 198 U. S. 17, 25 Sup. Ct. 552, 49 70 CONSTITUTIONAL PROVISIONS AFFECTING LAWS. [§ 57 unless previous authority is first obtained from certain officers of that state is in these respects unconstitutional as it subjects the right of the non-resident to ship liquors into the state and of the resident of the state to receive for his own use to conditions which are wholly incompatible with and repugnant to the ex- istence of the right which the statute itself acknowledges. 51 § 57. Wilson Act — words " upon arrival " construed. The Wilson Act was not intended and did not cause the power of the state to attach to an interstate commerce shipment whilst the commerce was in transit and until its arrival at the point of destination and delivery there to the consignee. 52 In the pro- vision in the act of Congress of Aug. 8, 1890 that liquors shipped from one state into another shall upon arrival in the latter state be subject to the laws of that state the words " upon arrival " are not to be construed as meaning the entrance within the borders of the state but as meaning on reaching their desti- nation. 53 So the rule that transportation of an article is not complete until delivery to the consignee is said to be a settled one. 54 So where it appeared than an interstate shipment of liquors was seized after it had been taken by a drayman from the depot and loaded on his dray it was held error to refuse to instruct the jury as follows: "Gentlemen of the jury you are instructed in this case to return a verdict of not guilty, for the reason that the barrels in question were never delivered to the defendant, and for the reason that the shipment in question was and is protected by the interstate commerce clause of the constitution of the United States until the same is delivered 51. Vance v. Vandercook Co. 170 53. Hudson v. State, (Okla. 1909), U. S. 438, 455, 18 Sup. Ct. 674, 42 101 Pac. 275, citing In re Landlord, L. Ed. 1100. 57 Fed. 572: See McCord v. State, 52. Adams Express Co. v. Ken- Okla. 1909), 101 Pac. 280. tucky, 214 U. S. 218, 29 Sup. Ct. 54. Adams Express Co. v. Com- 633; Rhodes v. Iowa, 170 U. S. 412, monwealth, 214 U. S. 218, 29 Sup Ct. 42 L. Ed. 1088, 18 Sup. Ct. 664. 633. S 8 58 59] CONSTITUTIONAL PROVISIONS AFFECTING LAWS. 71 to the consignee and the state authorities have no jurisdiction over the same at the time it was seized." 55 And it has been decided that a citizen of one state has the right to order and re- ceive a shipment of whisky from another stale and to convey the same from the depot at which the shipment may arrive, in the original package to his home, as such conveyance is a part of the interstate commerce transportation. 56 And a statute prohibiting the conveyance of intoxicating liquor from one place within the state to another place therein does not include the transportation, after liquor has been received at the railroad station, to the home of the consignee. 57 § 58. State statute as to place of delivery and sale. A statute which makes all shipments of spirituous liquors penal and provides that the place where the money is paid or the goods delivered shall be regarded as the place of sale and that the car- rier and his agents selling or delivering such goods shall be liable jointly with the vendor thereof is in its application to liquors shipped from another state unconstitutional as being an attempt to regulate interstate commerce. And in such a case evidence is held to be immaterial which shows that the liquors were not ordered by the consignee or that the agent of the carrier held them for a few days as an accommodation to the consignee. 58 § 59. Soliciting of orders. In an early ease in the United States Supreme Court it is de- clared that the legislature of a state in which the traffic in intoxi- 55. McCord v. State, (Okla. 1909), 57. High v. State, (Okla. 1909), 101 Pac. 280. 101 Pac. 115. 56. High v. State, (Okla. 1909), •"»*. Adams Express Co. v. Ken- 101 Pac. 11.",: Moreland v. State, tucky, 206 1'. S. 12!). 27 Sup. Ct. 606, (Okla. 1909) 101 Pac. 138: Hudson 51 L. Ed. 987; See also Herman v. v. State (Okla. 1909), 101 Pac. 275; Southern Railway Co., 203 U. S. McCord t. State, (Okla. 1909), 101 270, 27 Sup. Ct. 104, 51 L. Ed. 178. Pac. 280. 72 CONSTITUTIONAL PROVISIONS AFFECTING LAWS. [§ 59 eating liquors is permitted cannot by statute discriminate against persons who not having their principal place of business within the state, engage in the business of selling or of soliciting the sale of liquors to be shipped into the state. 59 And in a recent case in Texas it is held that a statute which prohibits the soliciting of orders for intoxicating liquors in local option territory and which makes no excepton in favor of parties who reside outside the state but punishes alike whether the solicitation is for state or inter- state shipments is in violation of the Federal Constitution and the Wilson Act regulating interstate commerce. 60 And in another case it was also declared that a state has no right to prohibit the solicitation within the state of orders for goods, such as intoxicat- ing liquors, which are without the state as this is an interference with interstate commerce. 61 But in a late case in the United States 59. Walling v. Michigan, 116 U. S. 446, 6 Sup. Ct. 454, 29 L. Ed. 691. 60. Ex parte Massey, 49 Tex. Cr. R. 60, 92 S. W. 1083. The court said: " Under the interstate commerce clause of our Federal Constitution, our legislature is powerless to pre- vent shipments of goods into this state from another state, under a contract between a citizen of this state and the citizens of the state from which the goods may be shipped." Per Davidson, J. It was also held in this case that where a constitutional provision merely prohibits the sales of intoxi- cating liquors in local option terri- tory a statute which prohibits also the soliciting of sales in such terri- tory is held to be unconstitutional. The court said : " It is not the law, if the party solicits or takes the order in a local option district to deliver intoxicants in such district, that it constitutes a sale. If this is the final termination of the matter there would be no sale. There might not even be a contract for a sale. If the solicitation ended the transaction, there would be no contract. Why? Because the parties solicited either failed or declined to accept the terms offered by the party soliciting the order. If there was an acceptance and an order given, still there would be nothing but a contract to deliver or sell at some future period. This is not sufficient. Why? Because there must be a sale, and such sale must be within the prohibited terri- tory in order to come within the pro- visions of article 16, section 20 of the Constitution. This section alone fur- nishes the authority for local option legislation and limits the authority of the legislation to the prohibition of sale ' within the prescribed limits ' where the law is operative. It is a well-known rule sanctioned by all legal authority that where the con- stitution provides Law a thing may or shall be done, such specification is a prohibition against its being done in any other manner." Per David- son, J. 61. Ex parte Loeb, 72 Fed. 657. §59] CONSTITUTIONAL PROVISIONS AFFECTING LAWS. 73 Supreme Court the doctrine is affirmed that under the Wilson Act the State has authority to forbid agents of non-resident liquor dealers from coming within its borders to solicit contracts for the purchase of intoxicating liquors and it is said that such au- thority must be as complete and efficacious as is such authority in relation to contracts of insurance, especially in view of the conceptions of public order and social well being which it may be assumed lie at the foundation of regulations concerning the traffic in liquor. 62 So in a recent case in Kansas it is decided that a Missouri corporation whose traveling salesmen solicit and receive orders in Kansas for intoxicating liquors, which orders when accepted by the corporation are filled by shipping the liq- uors F. O. B. cars at St. Louis to the purchasers, is engaged in business in Kansas and subject to the provisions of the statutes relating to foreign corporations doing business in the latter state, and acts in violation of the local statutes as to soliciting orders for intoxicating liquors which statutes were not repugnant to the commerce clause of the Federal constitution. 63 And in another late case in Kansas it has been declared that the owner of in- toxicating liquors in one state cannot by virtue of the interstate commerce clause of the federal constitution go into another state or send his agent there and, in defiance of the laws of the latter state, carry on the business of soliciting orders or proposals for the purchase of such intoxicating liquors to be shipped into such latter state without incurring the penalties of such laws. 64 And 62. Delamater v. South Dakota, tion giving power to Congress to reg- 205 U. S. 93, 27 Sup. Ct. 447, 51 L. ulate interstate commerce are not, ].;,] 724. under the Wilson Act, violated by a 63. State v. Lemp Brewing Co. statute which provides that: "Any (Kan. 1909), 102 Pac. 504. person who shall take or receive any 64. CriMer v. Shepler, (Kan. order for intoxicating liquors from 1909), 101 Pac. 619, citing and quot- any person in this state, other than ing from Delamater v. South Dakota. a person authorized to sell the same 205 U. S. 93, 99, 27 Sup. Ct. 4 17. 4 l«. as in this act provided, or any person 51 L. Ed. 724, and holding that the who shall directly or indirectly con- provisions of the Federal Constitu- tract for the sale of intoxicating liq- 74 CONSTITUTIONAL PROVISIONS AFFECTING LAWS. [§ GO in a recent case in Georgia it is decided that under the provisions of the Wilson Act a statute which (in aid of a police regulation prohibiting the sale of intoxicating liquors within a state or any portion thereof) prohibits the solicitation of orders is not, for the n ason that such statute conflicts with the power of Congress to control and regulate interstate commerce, void as to orders solicited in said state, although the seller and the liquor to be sold may both be in another state; because such regulation in no wise en- croaches upon the power of Congress to control interstate com- merce. The exercise of such state regulation, so far from being in conflict with the power of Congress to regulate interstate com- merce is expressly allowed by law. 65 Personal solicitation within the meaning of such a statute is held to include any act done by the seller himself which may tend to effect a sale as contrasted with any like act by an agent of the seller tending to a similar result. And in construing this term it is held that the solicita- tion of orders by mail is included if the seller himself in person writes or mails the letters received by the prospective buyer. 66 § 60. As to right to advertise. It has ben decided that since the passage of the Wilson Act the state may forbid the advertising in newspapers published within the state of intoxicating liquors which are not within the state as well as those which are within the state. 67 And a statute which makes it unlawful to solicit orders for sales of intoxicating liquors in any section of the state wherein it would be unlawful to grant a license for such sales, either by means of agents, circulars, posters or newspaper advertisements is held to be a valid exercise uors with any person in this state, 65. Rose v. State, 4 Ga. App. 588, other than a person authorized to sell 62 S. E. 117. the same, shall be deemed guilty of 60. Rose v. State, 4 Ga. App. 588, a misdemeanor, and upon conviction 62 S. E. 117. thereof, shall be punished therefor as 67. State v. J. P. Bass Pub. Co. provider! in this act for selling intoxi- 104 Me. 288, 71 Atl. 894. eating liqu< § <)0J CUNSTITLTIONAL I'UOVISIONS AFFECTING LAWS. 75 of the police power of the state and does nol conflicl with the power of Congress under the federal Constitution "to establish post offices and posl roads" and "to designate what shall he car- ried by and what excluded from the United States mails." C8. Zinn v. State, (Ark. 1008), 114 S. W. 227. The court said: "The statute does not relate to that sub- ject at all. It simply prohibited the soliciting of orders for the Bale of intoxicating liquors in territory where the sale of such liquors is pro- hibited. The graveness of the offense is the soliciting of orders for the sale. It matters not how the circular for that purpose reaches the prohibited territory, and the statute does not undertake to designate or condemn the manner by which the circulars may be carried into or exclude! from the prohibited territory. It i- the presence of the circular there for the unlawful purpose of soliciting that the statute denounces and not the method by which tiny may be conveyed there or distributed. Had the statute made the use of the United States mail for sending cir- culars into districts where the sale of intoxicating is prohibited the crime then the argument of the learned counsel for the appellant would be sound." Per Wood, J. 7G CONSTRUCTION OF STATUTES GENERALLY. [§ 61 CHAPTER IV. CONSTRUCTION OF STATUTES GENERALLY. Section 61. Constitutional provisions as to title and subject-matter of act construed. 62. Local or special laws generally. 63. Laws to be general and uniform. 64. Intoxicating liquor statutes — construction of generally. 65. Construing laws together. 66. Construction of act — Intent of legislature. 67. Where part of act invalid. 68. As to exceptions in statute. 69. Statutes affixing penalties strictly construed. 70. Construction of amendments to statutes. 71. Repealing laws generally. 72. Repeal by implication. 73. Statute denouncing two separate offenses. 74. Political subdivisions of state — judicial notice in construing statute. 75. One not affected by law cannot question validity. Sec. 61. Constitutional provisions as to title and subject-matter of act construed. Ordinarily under a constitutional provision that an act shall contain no matter variant from the title, it is sufficient if the title is descriptive generally of the purposes of the act. It is not neces- sary that it should particularize the general provisions contained in the body of the act. 1 So an act prohibiting the sale and vend- ing of spirituous liquors may declare what are such liquors and such declaration does not make the act unconstitutional as refer- ring to more than one subject matter. 2 And in an act pro- 1. Howell v. State, 71 Ga. 224. ing that an act the title of which is to 2. Howell v. State, 71 Ga. 224, hold- prohibit the sale of intoxicating liq- § Oil CONSTRUCTION OF STATUTES GENERALLY. 77 hibiting the sale of intoxicating liquors the word " sale " is to be construed in its broad and comprehensive sense and includes what is commonly known as barter and exchange. 3 Again where the title of an act is to prohibit the sale of intoxicating liquors the fact that such title does not in terms refer to a penalty for the violation of the act docs not make the act invalid as containing matter different from that expressed in its title because it pro- vides a penalty for such violation, as the word " prohibit " in the title is sufficiently broad to authorize such legislation and a penalty is germane to the scheme of prohibition as indicated by the title. 4 And an act to prohibit the sale of liquor is not un- constitutional because in the body of the act it is made unlawful also to give or loan spirituous, vinous or malt liquors. 5 And the selling and vending of spirituous liquors being the single subject matter of an act a specification of divers localities in which the sale is prohibited does not render the act unconstitutional on the ground that it embraces more than one subject matter, it being declared that as the legislature has the power to make the in- hibition general it may likewise confine it to certain specified lo- calities. 6 And in a recent case it is decided that under a con- stitutional provision that " Every act or resolution having the force of law must relate to but one subject, and that shall be ex- pressed in the title " a provision of an act which goes beyond the title thereto is null and void. 7 But an act the title of which was " to regulate the sale of spirituous or intoxicating liquors of any uors within certain limits is not un- sale of intoxicating liquors author- constitutional as containing matter izes legislation upon the subject of different from the title because it pro- barter. vides that no intoxicating liquors, -*• James v. State, 124 Oa. 72, 52 plantation hitters, or other intoxicat- S. E. — ' > r> . ing liquors sold under the name of pat- n - Stickrod v. Commonwealth, 86 ent medicine shall lie sold within Ky. 285, •", S. \V. 580. such limits. < ; - Howell v. State. 71 Ga. 224. 3. James v. State. 124 Ga. 72. 52 7. Croxton v. Truesdel, 75 S. C. 41S, S. E. 20.-). holding that the word sale 56 S. E. 45. in the title of an act to prohibit the 7S STRUCTION OF STATUTES GENERALLY. [§§ (J2, 63 kind in the County of Polk" was held to be unconstitutional in so far as it attempted to entirely prohibit the sale of such liquors it being declared that the title gave no intimation that the act intended to absolutely prohibit such a sale and that therefore it contained matter different from that expressed in the title. 8 § 62. Local or special laws generally. The validity of a statute is frequently assailed upon the ground that it is a local or special law and hence unconstitutional. 9 In this connection it has been decided that a law regulating the sale of liquors within a particular locality, is not unconstitutional because local, the only limitation upon a local act being that it must bear on all alike within the designated locality. 10 And in Alabama it has been decided that an act which was prohibitory in its character was not unconstitutional on the ground that it was a local and not a general law because of the fact that it did not go into operation in all the counties in the state until January 1, 1909, while in some of the counties it was to take effect a year previous. 11 § 63. Laws to be general and uniform. A law is general and uniform that applies to all persons and things coming within its provisions throughout the state. Its s. Crabb v. State, 88 Ga. 584, 15 «• State v. Sheggs, (Ala. 1908) S. E. 455. The act which was entit- 46 So. 2G8 wherein the court said: led as above provided that in case an " On January 1, 1909, a reasonably election which was to be held under near and definite date, the law will it- provisions should result in favor be actually effective from border to of a " restriction" of the sale of such border of the state. While in 1908 liquors then it should be a misde- the law will not be operative in every meanor to sell liquors at all in that county in the state, but will begin- county. ning with the succeeding year, be 9. Persons who derive all their au- operative throughout the whole state, thority under a special act will not be merely postpones for such definite and permitted to assail its constitution- reasonably limited period the partial nlity. State v. Cain, 78 S. C. 348, effectiveness of the law, yet the law 58 S. E. 937. is a state law applicable in due 10. Guy v. Commissioners, 122 N. season to every county in the state." C. 471, 29 S. E. 771. Per McClellan, J. §§ 64 65] CONSTRUCTION OF BTATT TES GENERALLY. 79 uniformity consists in the fact that no person or thing affected by it, is exempt from its operation. 12 So the legislature may de- termine the forms of the traffic that require to be regulated as a source of evil and may draw a line between the distillery and brewery on the one hand and the saloon on the other and such a statute is not subject to the objection that it is unconstitutional in that it is not general and uniform in its operation. 15 § 64. Intoxicating liquor statutes— construction of generally. Statutes designed to regulate the sale of intoxicating liquors are to be construed and interpreted by the rules having application to statutes generally. 14 This rule, however, is held in Iowa to be subject to the modification provided by the code that it shall be the duty of courts and jurors to construe the general chapter relating to the subject of intoxicating liquors so as to prevent evasion. 15 § 65. Construing laws together. In construing an intoxicating liquor law the principle applies that all laws upon a subject, or germane to it, shall be construed together, so that all may be given effect and produce a harmo- nious system, and it will be presumed that the legislature in enact- ing a law does so with reference to existing laws. 10 Where there are two acts upon the same subject the rule is to give effect to both if possible. 17 Where a subsequent law was nothing more or less than an amendment to a former excise law and added thereto merely a provision as to the giving of a second bend it was held that as the language of the subsequent law was as broad and ex- 12. Hock v. State, 44 Ohio St. 536, 94 N. W. 265. 9 N. E. 305. ie - Ensley v. State (Ind. S. C. 13. Adler v. Whitbeck, 44 Ohio St. 1909), 88 N. E. 62. State v. Bailey, 539 9 N E. 672; Webster v. State, 124 La. , 49 So. 1011. State v. lio' Term. 491, 82 S. W. 179. Roberts, 74 X. H. 476, 69 All. 722. 14. Cox v. Burnham, 120 Iowa 43, Paul v. State, (Tex. Civ. 1907), 106 94 N. W. 265. s W. 448. 15. Cox v. Burnham, 120 Iowa 43, IT. State v. Yewell, 63 Ind. 120. 80 CONSTRUCTION OF STATUTES GENERALLY. [§ 06 tensive in its operation as that of the original law it followed that the operation of the one was co-extensive with the operation of the other and that the former law being operative in a certain city the subsequent one was also. 18 But in construing revised statutes if their language be plain and free from doubt the will of the lawmakers must be ascertained therefrom unaided by prior statutes on the subject but if of doubtful meaning or import, or susceptible of two constructions, the prior statutes of which the new one is the revision, may be resorted to for the purpose of rendering the latter clear. 19 § 66. Construction of act — Intent of legislature. In the construction and interpretation of a statute the courts will consider the wrongs the legislature sought to remedy and endeavor if possible to give it that construction which will carry out the legislative intention. 20 Thus this principle was applied where a statute prohibited any " devices for amusement or music of any kind or character " to be permitted in a saloon it being declared that it was evidently the intention of the legislature to stop the alluring of people by means of amusements or music into rooms where liquors were sold and that the proper inter- pretation of the statute required a comma after the word amuse- ment and that it would be considered as though a comma were so inserted. 21 So the word " town " is often used in a generic sense as including villages, towns and cities and when such word is used in a general statute it may include cities unless the contrary is. State v. Fisher, 33 Wis. 154. 20. Collins v. State, 38 Ind. App. 19. State v. Stroschein, 90 Minn. 025, 78 N. E. 851. 248, "109 N. W. 235, citing Hamilton 21. Collins v. State, 38 Ind. App. v. Rathbone, 175 U. S. 414, 20 Sup. f.25, 78 N. E. 851, holding that an Ct. 155, 44 L. Ed. 219, to the effect indictment charging the defendant that prior statutes may be resorted to with permitting a certain device for for the purpose of solving but not to music to wit: a Regina music box to create an ambiguity. be and remain in his saloon did not state an offense under the statute. §§ 67,68] CONSTRUCTION OF 8TAT1 TES GENERALLY. 81 appears from the whole statute to have been the intent of the leg- islature. 2 - Again where a statute which has been judicially con- strued is reenacted, the construction given will be considered as a part of the legislative intent in such reenactment. 23 § 67. Where part of act invalid. Where the different sections of an act are independent of each other the invalidity of some of the sections does not necessarily invalidate the entire act; 24 but in such a case if the invalid part can be stricken out and the remainder can stand complete by itself effect will be given to it by the court. 25 So a prohibitory law although unconstitutional as a regulation of commerce as to certain sales, may be constitutional as to other sales. 26 But where the legislature passes an entire statute containing limitations therein which are an essential part thereof and such limitations are in conflict with the constitution, the courts cannot emasculate the limitations and thus create a different act from that passed by the legislature. 27 § 68. As to exceptions in statute. "Where the legislature passes an act to regulate, restrain, or prohibit the liquor traffic and such act contains no exceptions it is said that the courts have no power to make any, as it is for the legislature to make the laws and for the courts to construe them and not to create laws of a different character. 28 So a wholesale liquor dealer is subject to the operation of a general law, con- 22. Mayor & Council v. Dispensary 24. State v. Gerhardt, 145 Ind. 439", Comm'rs., L25 Ga. 559, 54 S. E. 539, 44 N. E. 469, 33 L. R. A. 313. holding that the words " incorporated 25. State v. Desehamp, 53 Ark. towns" as used in the Dispensary 400, 14 S. W. 653. act for a certain county in that state -'<;. State v. Kibling, G3 Vt. G36, 22 included a city located in that county Atl. 613. and embraced every incorporated town 27. State v. Elff. 40 Ind. 282. or city within the county. 2S. Philips v. State, 2 Yerg. 23. Sopher V. State, 169 Ind. 177, (Tenn.) 488. 81 N. E. 013. SJ CONSTRUCTION OF STATUTES GENERALLY. [§ 69 taining no exceptions in his favor, which prohibits the selling of intoxicating liquor in a quantity less than that specified therein. 29 And in a case in South Carolina under a statute which provided that it should be unlawful for any person or persons to sell spirituous or intoxicating liquors without a license so to do it was decided that as the statute was positive and without quali- fication of any kind the fact that liquor was sold and used only for medicinal purposes would not excuse a violation of the act and that a person making such a sale was properly convicted. 30 But in an early case in Indiana it is declared that though a stat- ute prohibiting the retailing of spirituous liquors without a li- cense contains no exception in favor of a sale for medical purposes yet in construing a statute it is proper to look to its effects, and that if a druggist upon a proper occasion, bona fide and with due caution, retail liquor to be used merely as a medicine, he will not be considered as having violated the statute. 31 And where there is an exception in a statute it will control. Thus where a pro- hibition law was passed which excepted from its operation cer- tain designated cities and towns and provided that in the places so excepted liquors might be sold " under the restrictions now pro- vided by the laws applicable to those towns " it was held that prior acts under which the liquor traffic was regulated were not repealed so far as such towns and cities were concerned and that a dispensary act applicable to one of the cities mentioned and which was passed a few days before, and went into operation subsequent to the passage of the above act controlled. 32 § 69. Statutes affixing penalties strictly construed. Where a proceeding under a statute is penal or quasi criminal 29. State v. Benz, 41 Minn. 30, 42 See also Hottendorf v. State, 89 Ind. N. W. 547. 15. 30. State v. Tbornburjr, 16 S. C. 32. Hubbard v. Lancaster, 127 Ala. 482. L 28 So. 791, 85 Am. St. Rep. 68. 81. Donnell v. State. 2 Ind. 658. §70] CONSTRUCTION OF STATUTES GENERALLY. 83 in character, the statute must be given a .strict construction and nothing can be added thereto by inference or intendment. Thus it has been so decided in reference to proceedings under a stat- ute making it the duty of the county attorney of each county to enforce provisions of the statute relating to the mulct tax and providing that the district court or any judge thereof shall suspend or remove from office any county attorney who shall willfully refuse or neglect to perform any such duty. 33 In the application of the rules that statutes affixing penalties should be strictly construed and all doubts resolved in favor of the ac- cused and that it is always to be presumed that the legislature will express its intention in clear and explicit terms in prescrib- ing the obligations for a violation for which a penalty is affixed it has been decided that the words " it is desired and required " as used in a statute are not mandatory. 34 § 70. Construction of amendments to statutes. In the case of an amendment to a statute, for the purpose of determining the legislative intent and the proper construction to be given to such amendment it is proper to take into consider- ation the. prior statute and the construction thereof adopted by the courts, and from a consideration of the latest expression of the legislative will determine the construction that should be adopted. 35 And an amended section of an act takes the place of the original section in the act amended, and the failure of the 33. Tennant v. Kuhlemeier, (Iowa California wine * * * shall plainly 1909), 120 N. W. 689. stencil, hand, or have printed where A penal statute must be strictly it will be easily seen, first ' Pure Cal- construed and cannot be extended be- ifornia Wine' and secondly his name yond its letter. Klein v. Livingston or the firm's name." It was held that Club, 177 Pa. St. 224, 35 Atl. 606, tlii* act was not of such a mandatory 34 L. R. A. 94, 55 Am. St. Rep. 717. character as to require that a pure 34. Ex parte Kohler, 74 Cal. 38, wine stamp should be placed upon 15 Pac. 43G so holding where a stat- pnre California wine. ute provided that "it is desired and 85. state v. McEntee, 68 Iowa 381, required that every grower, manufac- 27 N. W. 205. turer, trader, handler, or bottler of 84 CONSTRUCTION OF STATUTES GENERALLY. [§ 71 legislature in amending the same section of the original act a second time to specifically refer to it as having been amended by the first amendatory act, does not affect the validity or consti- tutionality of the second amendment of the amended section. 36 Where by an amendment to a statute which creates an offense a word or term is used which includes both the class of cases under the original statute and some additional ones the original statute will not be regarded as repealed so far as the prosecution of an offense thereunder is concerned. 37 So where a statute makes it an offense to sell " spirituous liquors " and an amendment is made substituting the word " intoxicating " for the word " spirit- uous " but does not in any other way alter the statute, such statute will not be repealed by the amendment, as the word " intoxicat- ing " includes a larger class of cases than " spirituous." 38 If an act which purports to amend a section of the code be for any reason unconstitutional, the validity of the section sought to be amended is not affected and an accusation the terms of which are such as to come within the provisions of the law as it existed be- fore the passage of the amendment may stand notwithstanding the invalidity of the amendatory act. 39 § 71. Repealing laws generally. Where the repealing clause of a statute is not general regarding all laws but is directed against laws in conflict or inconsistent therewith the statute will not be construed as repealing a former act which is not in conflict with it. 40 If the legislature enacts a law in the terms of a former law, and at the same time repeals the former, this amounts, in law, to a re-affirmance, and not a repeal, and it continues in force for all purpose without intermission. 41 36. West & Co. v. Board of Com- 39. Barker v. State, 118 Ga. 35, missioners, 14 Ida. 353, 94 Pac. 445. 44 S. E. 874. 37. Commonwealth v. Herrick, 6 40. State v. Gray, 111 La. 853, 35 Cush. (Mass.) 4C,r>. So. 052. 38. Commonwealth v. Herrick, 6 41. State v. Sutton, 100 N. C. 474, Cush. (Mass.) 465. 6 S. E. 687. § 72] C0NSTR1 I TION OF BTA1 I I ES GENERALLY. 85 And where there is a generad law regulating or restricting the sale of liquors while the legislature may Buspend its operation yet when it attempts to do *o the suspension must be general and especially is this so under a constitutional provision that no gen- eral law shall be suspended by the legislature for the benefit of any individual, corporation or association. 42 And in order that a general law shall operate to repeal prior special legislation or local laws, such laws should be mentioned in the general law or such purpose be made manifest from its general provisions. 43 § 72. Repeal by implication. A statute is repealed by the enactment of another statute which is repugnant to it or which covers the whole subject of the former, 42. Beauvoir Club v. State, 148 Ala. 643, 42 So. 1040. Where a special statute is passed subsequent to the enactment of a gen- eral law, the general law will in so far as the two laws are in conflict be limited in its operation thereby. Hall v. Dunn, (Oreg. 1908) 97 Pac. 811. An act absolutely prohibiting the sale of intoxicating liquors in a given place suspends the operation in such locality of a general law providing thai there shall be no sale without the payment of a tax or the procuring of a license or the performance of some other condition. Barker v. State, 118 6a. 35, II S. E. S74. 48. Williams v. Stale. 52 Tex. Cr. 371, 107 S. W. 1121. See also Paul v. state. (Tex. Civ. 1907), L06 S. W. 448. A general law providing for the granting of licenses to conduct saloons in the residence portion of a city and as to how they may be ob- tained does not repeal a provision in a charter granted to a city and which prescribes the limits within which saloons may be maintained and delegates to the city authorities the power to suspend the charter provi- sion and an ordinance prohibiting the sale of liquors beyond the prescribed limits, but the two acts will be con- strued together. Williams v. State, 52 Tex. Cr. 371, 107 S. W. 1121; followed in Ex parte King, 52 Tex. Cr. 383, 107 S. W. 549. Where subsequent to the enactment of a by-law by a city fixing the hours of closing sa- loons, a state law is enacted which provides for the licensing of saloons and forbids the keeping open of a saloon, by one licensed under the act. between certain hours and the hour specified as the hour of clos- ing in the statute is later than that in the by-law, and the statute further provides that all laws incon- sistent therewith an- repealed, the state law is held to supersede the by- law only as to persons licensed under the former. State v. Brady, 41 Conn. 588, holding also that in a prosecu- tion for violation of tin' by-law it must be shown affirmatively in de- fence that the party prosecuted was licensed under the state law. 86 CONSTRUCTION OF STATUTES GENERALLY. [§ 72 oven though there be no repealing clause in the subsequent act. 44 So in a case in JSTew York it is declared in this connection : " Al- though it is not expressly repealed, if it appears by the provisions of the later statute that they were intended to cover the subject matter of the former one, the latter will be deemed by implication to have been repealed or superseded." 45 Repeal, however, by im- plication is not favored. 46 So where a general law prohibits the sale of liquor on Sunday anywhere in the state and makes such a sale an offense it is not repealed by a subsequent local law pro- hibiting the sale of liquor in one of the counties of the state excepting therefrom a certain city but making no reference to sales on Sunday, it being declared that there being no permission by such act to sell on Sunday there is no question of repeal. 47 And a general statute without negative words will not operate as a repeal of particular provisions of a former statute on a special subject, unless the two statutes are irreconcilably in conflict. 48 So only such part of a local act is repealed by implication by a sub- sequent general law as is in irreconcilable conflict therewith. 49 And in North Carolina it has been decided that a special act establishing a dispensary in a certain town did not repeal the general statute as to which it had no other effect than to prohibit the county commissioners from, issuing licenses to retail spirituous 44. United mates.— United States 46. State v. Gray, 111 La. 853, 35 v. Warwick, 51 Fed. 280. So. 952. Arkansas. — Galloway v. State, 60 "Repeals by implication are not Ark. 302, 30 S. W. 349. favored and should never be made ef- K'ntuclcy. — Rice v. Commonwealth, fective where the result would be de- 22 Ky. Law Rep. 1793, 61 S. W. 473. structive and ruinous of the public Maryland. — State v. Yewell, G3 Ind. welfare, unless such construction is 121. imperatively demanded." Snead v. Michigan.— Village of Sparta v. State, (Tex. Cr. 1909), 117 S. W. Boorom, 129 Mich, 535, 89 N. W. 435, 983. Per Ramsey, J. 90 N. W. 681. 47. Flood v. State, 103 Md. 692, 63 New Hampshire. — State v. Perkins, Atl. 684. 26 N. H. 9. 48. Walter v. State, 105 Ind. 589, ir,. People v. Vosburgh, 76 Hun. 5 N. E. 735. ( X. Y. ) 502, 28 N. Y. Supp. 208. 49. James v. State, 124 Ga. 72, 52 Per Bradley, J. S. E. 205. §§ 73 74 75] CONSTRUCTION OF STAT1 TES GENERALLY. 87 liquors in said town and to make such license ii issued invalid and no protection to any one selling under it. 50 § 73. Statute denouncing two separate offenses. The fact that two separate offenses may be denounced in a statute is held not to make it unconstitutional. 51 Thus a statute was held constitutional which provided that any person who should keep open a place on Sunday for the sale of spirituous liquors or who should on such day sell or dispose of such liquors should be subject to a fine for each offense and it was held that the keeping open for sale was one offense and the act of selling the other and that each sale constituted a separate offense for which a separate arrest and trial could be had. 52 § 74. Political subdivisions of state — judicial notice in construing statute. The political subdivisions of a state being prescribed by statute, the courts will take judicial notice thereof. Therefore where in a general act prohibiting the sale of liquors an alphabetical list of counties is given, each name being followed by a list of the places within a certain distance of which the sale or manufacture of liquor is prohibited, the courts will take judicial notice of the fact that the names in alphabetical order are the names of counties although the word " county " does not appear in the list. 53 § 75. One not affected by law cannot question validity. One cannot be heard to say that a law is invalid and unconsti- tutional upon a ground which in no way affects his rights. So co. state v. Smith, 126 N. C. 1057, •"'•• Commonwealth v. McCann, 123 35 S. E. 015, holding that one who Ky. 247. 94 S. W. 645. violated the general law against re- 52. Commonwealth v. McCann, 123 tailing spirituous liquors without a Ky. 217. 94 S. W. 645. license and also the dispensary act BS. State v. Snow, 117 N. C. 774, for the town was indictable under 23 S. E. 322. either act. gg CONSTRUCTION OF STATUTES GENERALLY. [§ 75 where one is seeking to obtain the privilege of selling liquor by retail, or as a beverage, it has been decided that he cannot question the constitutionality of the law which denies him that privilege upon the ground that it forbids the sale of liquor even for religious or medicinal purposes, it being declared that prescriptions are not filled in bar rooms, nor the communion table supplied from such places. 54 And the objection that no exception is made in a statute for 1" -ors for medicinal or sacramental purposes or for sales in original packages imported from other states is not available to one who is not prosecuted for selling liquor for such purposes or in such manner. 55 54. Burnside v. Lincoln County prejudiced thereby. State v. Ger- Court, 86 Ky. 423, 6 S. W. 276. hardt, 145 Ind. 439, 44 N. E. 469, It is firmly settled that a party 33 L. R. A. 313. See also State v. will not be heard by the court to Roberts, 74 N. H. 476, 69 Atl. 722. question the validity of a law, or any 55. In re O'Brien, 29 Mont. 530, part thereof, unless he shows that 75 Pac. 200. some right of his is impaired or g T( ;i POWER OF STATE TO REGULATE rRAFFIC. 89 CHAPTER V. POWER OF STATE TO REGULATE TRAFFIC. SECTION 76. Liquor traffic generally. 77. No inherent right to sell. 78. Nature of right to sell. 79. Constitutional provisions affecting power. 80. Control of state generally— Police power. 81. Power of state to regulate. 82. Legislature may impose conditions deemed proper. 83. Right to prohihit traffic generally. 84. Effect of license from United States. 85. Cannot prohibit having liquors in one's possession. 86. Prohibition by state-where property diminished in value. 87. Same subject continued. 88. Prohibition as affecting property values concluded. 89. Power of state to engage in liquor traffic. 90. Dispensary laws— Alabama decisions. 91. Dispensary laws— Other decisions. 92. Dispensary laws— federal decisions. 93. Dispensary laws— question as to creating monopoly. 94. Dispensary act— Power of mayor to enforce action under. 95. Sales by dispensers after dispensary abolished. 96. Town and city agents to purchase and sell. 97. Same subject— liabilities and rights of towns. 98. Same subject — power of agents. 99. Same subject— power of agent to delegate authority. Sec. 76. Liquor traffic generally. Immorality, crime and pauperism can in many cases be traced directly to indulgence in intoxicating liquors and it is well said that such liquors are in their nature dangerous to the morals, good order, health and safety of the people and are not to be placed on the same footing with the ordinary commodities of 90 rott'ER OF STATE TO REGULATE TRAFFIC. [§ 77 life. 1 And the business of selling intoxicating liquors has for many years, both in this country and in England, been regarded by legislatures and courts with disfavor; and it does not stand upon the same plane of utility and morality with many useful arts, trades and professions. 2 So in a recent case in Minnesota it is said : " It has always been the policy of this state to protect the youth of our land from the immoral and vicious influences connected with the liquor traffic, and to guard them so far as possible from the formation of a habit inimical alike to them and to the welfare of society." 3 While, however, this business has as a general rule been regarded with disfavor yet it was recognized as a legitimate one at common law and independent of constitu- tions or statutes the courts have no jurisdiction to suppress it as it is not a nuisance per se. 4 § 77. No inherent right to sell. There is no inherent right in a citizen to sell intoxicating liquors by retail; it is not a privilege of a citizen of the state or of a citizen of the United States. 5 The right is not to be regarded 1- State v. Aiken, 42 S. C. 222, 20 S. E. 221, 26 L. R. A. 345. 2. Robinson v. Haug, 71 Mich. 38, 38 N. W. 6G8. Per Long, J. 3. State v. Stroschein, 99 Minn. 248, 251, 109 N. W. 235. Per Brown, J. 4. Campbell v. Jackman Bros. (Iowa 1008), 118 N. W. 755. The business of selling intoxicating liquor is not of itself wrongful or a nuisance per se. It is the un- restricted and unregulated sale of it that Hi" courts have regarded ;>s tending to pauperism and crime, and in the al frictions placed upon the traffic by legislative enactment or constitutional provision, any person may engage in it. State v. Roberts, 74 N. H. 470, 69 Atl. 722; McCord v. State (Okla. 1909), 101 Pac. 280. An ordinary saloon does not at com- mon law constitute a public nuisance, but such a place when kept in an unlawful manner may become one. Sopher v. State, 1G9 Ind. 177, 81 N. E. 913. 5. United States. — Crowley v. Christensen, 137 U. S. 86, 91, 11 Sup. Ct. 13, 34 L. Ed. 1120; Busch v. Webb, 122 Fed. 655; Cantiori v. Tillman, 54 Fed. 969. California. — Foster v. Board of Police Commissioners, 122 Cal. 483, 37 I'm-. 763, 41 Am. St. Rep. 194: Rood v Collins, 5 Cal. App. 494, 90 I'm.-. 973. Indiana. — McClanahan v. Breeding (Ind. S. C. 1909), 88 N. E. 695; § 78] POWER OF STATE TO REGULATE TRAFFIC ill as a primary and absolute one. fl And a charter to a corporation confers upon it no greater right to manufacture or sel] Liq than individuals possess and docs not vest it with any contract right which exempts it from any legislative control to which in- dividuals are subject. 7 So a corporation though granted a char- ter to manufacture intoxicating liquors is, nevertheless, held to be subject to the provision of a general law which tends to regulate or control the traffic in such liquors, though no power is reserved by the legislature, in granting the charter, to repeal or amend the same. 8 § 78. Nature of right to sell. The retail liquor traffic is a mere privilege and in defining the Creencastle v. Thompson, 168 Ind. 493, 81 N. E. 497. Kansas. — State v. Durein, 70 Kan. 13, 80 Pac. 987. Louisiana. — New Orleans v. Smythe, 116 La. 685, 41 So. 33. Michigan. — Sherlock v. Stuart, 96 Mich. 193, 55 N. W. 845, 21 L. R. A. 580n. Missouri. — State v. Bixman, 162 Mo. 1, 31, 62 S. W. 828. New Jersey. — Meehan v. Excise Commissioners, 73 N. J. L. 382, 64 Atl. 689; Hohoken v. Goodman, 68 N. J. L. 217, 221, 51 Atl. 1092. South Dakota. — State v. Brennan, 2 S. D. 384, 50 N. W. 625. Wyoming. — State v. City Council, 7 Wyo. 417, 52 Pac. 975, 40 L. R. A. 710. The right to sell intoxicating liquors, so far as such a right exists, is not one of the rights urn wing out of citizenship of the United States and which by the Fourteenth amend- ment to the United States constitu- tion, the states were forbidden to abridge. Bartemeyer v. Iowa, is Wall. (U. S.) 12!). 21 L. Ed. 929. See also In re Hoover, 30 Fed. 51. 6. State v. Ludington, 33 Wis. 107. Per Dixon, C. J., quoted in State v. Bixman, 162 Mo. 1, 23, 62 S. W. 828. In a case in Kentucky it is said : " No one has ever had the right to sell whisky in this commonwealth, save as a privilege. It has always been the creature of license." Burn- side v. Lincoln County Court, 86 Ky. 423, 6 S. W. 276. 7. Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989. 8. Commonwealth v. Certain In- toxicating Liquors, 115 Mass. 153. The court said: "Any laws the sovereign power may find it necessary or salutary to enact, regulating, con- trolling, restricting or prohibiting the sale of a particular kind of property for tin" general benefit, apply as well to the property of corporations, like the claimant, as to individuals. Such laws are in tbe nature of police regulations and individuals and cor- porations are alike subject to them. * * * They are presumed to be passed for the common good, and to be necessary for the protection of the lie, and cannot be said to im- 9'2 TOWER OF STATE TO REGULATE TRAFFIC. [§ 79 extent to which the privilege goes, the law should be strictly con- strued against the traffic, 9 and the right to sell granted by the legislature is held by the grantee as a favor, which, like all favors, must be received upon such terms and conditions and subject to such burdens and inconveniences as the donor thinks proper to impose and the donee elects to accept. 10 § 79. Constitutional provisions affecting power. In some states the sale of intoxicating liquors is restricted or prohibited by constitutional provisions or amendments. 11 In construing such provisions the doctrine is said to be well settled that as a rule negative or prohibitory clauses in a constitution are self executing. So it has been decided that a prohibitory provision in a state constitution against the sale, barter, giving away or otherwise furnishing intoxicating liquors of any kind including pair any right, or the obligation of any contract, or to do any injury in the proper and legal sense of these terms." Per Endicott, J. 9. Ex parte Cain, 1 Okla. 7, 93 Pac. 974. 10. State v. Ludington, 33 Wis. 107, 115. Per Dixon, C. J. See in this connection chapters XI- XV, as to Licenses. The licensed saloon keeper does not sell liquor by reason of an inalienable right inherent in citizenship but because the gov- ernment has delegated to him the ex- ercise of such rights under its power of police. State v. Aiken, 42 S. C. 222, 20 S. E. 221, 20 L. R. A. 345. In Louisiana, it has been decided that the business of selling intoxi- cating liquors has been made lawful by the constitution and statutes of the state and that the right of any citizen to engage in it is one, the enjoy- ment of which is subject to such con- ditions only as may be imposed or authorized by the general assembly in the legitimate exercise of the police power of the state. State v. City of New Orleans, 113 La. 371, 36 So. 999. !!• In Kentucky it has been de- cided that the constitution has not altered or abridged the power of the legislature to pass laws governing or restricting the sale of intoxicating liquors, except that it allows certain units named to wit, the county, city, town, district, or precinct to prohibit such sale by a vote of the people. Board of Trustees v. Scott, 30 Ky. Law Rep. 894, 101 S. W. 944. A statute permitting the sale of spirits, wines and other intoxicating liquors to be used for mechanical and medicinal purposes does not violate a provision of* the constitution forbid- ding the passing of any act by the legislature " authorizing the grant of license for the sale of ardent spirits, or other intoxicating liquors." Peo- ple v. Collins, 3 Mich. 343. In Maine, it is decided that by the adoption of a constitutional amend- ment prohibiting the manufacture, sale and keeping for sale of intoxi- § 79] POWER OF STATE TO REGULATE TRAFFIC. 93 beer, ale and wine contrary to .such provision is valid and self executing. 12 But a constitutional provision or amendment pro hibiting the liquor traffic and directing thai the legislature shall prescribe regulations for the enforcement of such prohibitory provision does not repeal existing laws so as to allow untram- meled traffic until the legislature acts but until such time previous statutes are to be regarded as in force. 13 A constitutional pro- vision that " laws may be passed regulating or prohibiting the sale of intoxicating liquors " is held to impose a restraint upon the plenary and unrestricted power of a legislature to deal with the subject of such liquors in any manner it chooses to. In such a case it is declared that the purpose and effect of the provision is to restrict and limit the legislative authority to the powers expressly granted therein, that is to the power to regulate and prohibit the sale, the rule being said to be simply an application of the maxim expressio unius est exclusio alterius. So under such a provision a statute was held void which provided that no person shall without a license " keep in his possession, for another, spirituous liquor." 14 eating liquors all statute laws in reference to the subject matter em- braced in the amendment were not re- pealed by implication. State v. Dorr, 82 Me. 212, 19 Atl. 171. A constitutional provision that " the legislature shall not pass any act authorizing the grant of license for the sale of ardent spirits, or other intoxicating liquors" has been construed as prohibiting the legisla- ture from authorizing townships, cities and villages to grant licenses but not to inhibit the legislature against regulating and even prohibit- ing it by law. Langley v. Ergen- singer, ."! Mich. 31 1. A constitutional amendment in Rhode Island which provided "the manufacture and sale of intoxicating liquors to be used as a beverage shall be prohibited. The general assembly shall provide by law for carrying this article into effect," was held not to limit the power which the general assembly previously had to enact prohibitory laws; an express com- mand to exercise the power in re- spect to the use as a beverage not being tantamount to an abrogation of the power to regulate and restrict their sale for other purposes which the legislature before possessed. State v. Kane. 15 II. I. 395, 6 All. 783. 1-'. Kx parte Cain. 1 Okla. 7. !>.i Pac. 074. i:«. North Dakota v. Swan. 1 X. D. 5. 41 X. W. !!'"2. i t. state v. Gillman, :v:, W. Va. 1 it;, in s. E. i2S3, 6 L. R. A. 847. 04 TOWER OF STATE TO REGULATE TRAFFIC. [§ 80 § 80. Control of state generally — Police power. It may be stated generally that the owner of property acquires and holds it subject to the right of the legislature, in the exercise of the police power, to control it whenever the public peace, the public health, or the public morals is involved. 15 All rights are held subject to the police power of the state and if the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. 16 And where the constitution of a state contains no provision ex- pressly or impliedly denying to the state the right to permit, or license or prohibit the sale of intoxicating liquors the subject is one upon which the legislature may constitutionally exercise its discretion. 17 And the taxing power of the government and the regulations presented by Congress in relation thereto, in no man- is. Burnside v. Lincoln County Court, 86 Ky. 423, 6 S. W. 276. " It is undoubtedly true that it is the right of every citizen of the United States to pursue any lawful trade or business, under such restrictions as are imposed upon all persons of the same age, sex, and condition. But the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country es- sential to the safety, health, peace, good order and morals of the com- munity." Crowley v. Christensen, 137 U. S. 86, 89, 11 Sup. Ct. 13, 34 L. Ed. 1120. Per Mr. Justice Field. The police extends to the protec- tion of the lives, health, and property of the citizens and to the preserva- tion of good order and public morals and the legislature cannot divest it- self of that power. Beer Co. v. Mass- achusetts, 97 U. S. 25, 24 L. Ed. 989. 16. Beer Co. v. Massachusetts, :■'. U. S. 25, 32, 24 L. Ed. 989. Per Mr. Justice Bradley. " There is no vested right to carry on such traffic which is in the na- ture of property. The state can at any time step in and absolutely pro- hibit it, no matter how long it has been carried on, nor how great sums may have been invested therein, nor how serious the losses which may re- sult from such prohibition." In re Hering (N. Y. App. Div. 1909), 117 N. Y. Supp. 747. Per Burr, J. The right to engage in the sale of intoxicating liquors at retail arises solely from the common law, and such right is subject to any restriction the legislature sees fit to impose under its exercise of the police power. Sopher v. State, 169 Ind. 177, 81 N. E. 913. 17. Campbell v. Jackman, Bros. (Iowa 1908), 118 N. W. 755. § 81] POWER OF STATE TO REGULATE TRAFFIC. 95 ner curtail or interfere with, the exercise by the states of tlnir undoubted police powers. 18 § 81. Power of state to regulate. As we have stated in the preceding section it is within the power of the state to make such laws and regulations as tend to preserve the public peace and to protect the public health, morals and safety. The exercise of this power is peculiarly and especially proper in respect to the liquor traffic as the results which follow from the use of intoxicating liquors often tend to disturb the public peace and frequently result injuriously to the health and morals of those who partake thereof and to the health and safety of others. Therefore the power of the state to control and regu- late the traffic in such liquors is one which is generally lecognized, and its exercise is a proper excise of what is known as the police power. 19 So this power is said to be signally exercised in legis- ts. State v. Hanson, 16 N. D. 347, 113 N. W. 371. !*>• United States. — Delamater v. South Dakota, 205 U. S. 93, 27 Sup. Ct. 447, 51 L. Ed. 724. Alabama. — Beauvoir Club v. State, 148 Ala. 643, 42 So. 1040. California. — Reed v. Collins, 5 Cal. A pp. 494, 90 Pac. 973. Connecticut. — Appeal of Allyn (1909), 71 Atl. 794, 795. Georgia. — Rose v. State, 4 Ga. App. 588, 62 S. E. 117. A'< >i tucky. — Commonwealth v. Campbell (1909), 117 S. W. 383; Commonwealth v. McCann, 123 Ky. 247, 94 S. \V. 645. Louisiana. — New Orleans v. Smythe, 116 La. 685, 41 So. 33. Maine. — State v. Frederiekson, 101 Me. 37, 63 All. 535. Michigan. — Robinson v. Baug, 71 Mich. 38, 38 \. W. 668. Mississippi. — Rohrbacher v. City of Jackson, 51 Miss. 735. New Jersey. — Hoboken v. Goodman, 68 N. J. L. 217, 51 Atl. 1092; Paul v. Gloucester County, 50 N. J. L. 585, 15 Atl. 272. New York. — People v. Warden of City Prison, 6 App. Div. 520, 39 N. Y. Supp. 582. Ohio.— Miller v. State, 3 Ohio St. 475. Oregon. — State v. Baker, 50 Oreg. 381, 384, 92 Pac. 1076. Tennessee. — Webster v. State, 110 Term. 491, 82 S. W. 179. Texas. — De Grazier v. Stephens (S. C. 1907), 105 S. VV. 992; Ex parte King, 52 Tex. Cr. 383, 107 S. W. 549; Ex parte Bell, 24 Tex. App. 428, 6 S. W. 197. Wisconsin. — State v. Ludington, 33 Wis. 107. 113. A constitutional provision vesting "the legislative power" of the state in tin- general assembly <>r legislature rovers the whole Held of legitimate legislation, except so far 96 POWER OF STATE TO REGULATE TRAFFIC. [§81 lation designed to promote popular education to protect the public health and morals, to punish and prevent crime, to alleviate and as limitations may be found in other provisions of the state constitution or in that of the United States. Appeal of Allyn (Conn. 1909), 71 Atl. 794. Liquor dealers and saloon keepers belong to that class of trades which have ever been the subject of regulation under what are called po- lice powers. Territory of Arizona v. Connell, 2 Ariz. 339, 16 Pac. 209. It is entirely within the power of the legislature to prescribe under what circumstances and conditions a sale of intoxicating liquors may be made and where such power has been exercised it is not within the province of one who holds a permit to sell such liquors to ignore any one of the con- ditions imposed as immaterial. State v. Harris, 122 Iowa 78, 97 N. W. 1093. " The right to legislate on a sub- ject so deeply affecting the public welfare and security has not hereto- fore been questioned or denied; and it could not well be, for it would have been to deny the powers of govern- ment inherent in every sovereignty to the extent of its dominions. A state is not sovereign without the power to regulate all its internal commerce as well as police. The legislature exercises and wields these sovereign police powers, as it deems the public good to require. It is a hold assertion at this day that there is anything in the State or United SI ale- Constitutions conflicting with or setting bounds upon the legislative discretion or action in directing how, when or where a trade shall be con- duct ei] in articles intimately con- nected with the public morals, or pub- lic safety, or public prosperity; or indeed to prohibit or suppress such traffic altogether if deemed essential to effect those great ends of good government." Metropolitan Board of Excise v. Barrie, 34 N. Y. 657, 666, Per Wright, J. See in this connec- tion note 7 N. Y Ann. Rev. Ed. 800. " The legislature having control of the subject of the traffic in and use of intoxicating liquors, may make such regulations to prevent the public evils and private injuries resulting from intoxication as in its judgment are calculated to accomplish this end. It may prohibit the selling or giving away of liquors, or it may while not interfering with the liberty of the sale or use, guard against the dan- gers of an indiscriminate traffic, and induce caution on the part of those who engage in the business, by sub- jecting them to liabilities for con- sequential injuries." Bertholf v. O'Reilly, 74 N. Y. 509, 524. Per Andrews, J. " If the legislature was impotent to deal with the traffic in intoxicating liquors or powerless to restrain or regulate it in the interest of the com- munity at large, because legislation on the subject might to some extent interfere with the use of property or the prosecution of private business, the legislature would be shorn of one of its most usual and important functions. But as we have said the right of the legislature to regulate the traffic is shown by the uniform practice of the government. It may not only regulate but it may prohibit it." Bertholf v. O'Reilly, 74 N. Y. 509, 520. Per Andrews, J. " The subject of the regulation of the traffic in liquors has been held uniformly to be within the police power of the state, both by the Su- preme Court of the United States and of this State." Guy v. Commis- §82] POWER OF STATE TO REGULATE TRAFFIC. prevent pauperism, and especially in legislation designed to pre- vent the demoralization and impoverishment that follow free traffic in intoxicating liquors. 20 § 82. Legislature may impose conditions deemed proper. In the absence of a provision in the constitution of a state re- stricting the power of the legislature in reference to the sale of liquor, the legislature has the power to regulate the mode and manner and the circumstances under which the liquor traffic may be conducted, and to surround the right to pursue it with such conditions, restrictions and limitations as it may deem proper. 21 sioners, 122 N. C. 471, 29 S. E. 771. Per Clark, J. " By this general police power of the state, persons and property are subjected to all kinds of restraints and burdens, in order to secure the gen- eral comfort, health and prosperity of the state; of the perfect right of the legislature to do which no ques- tion ever was, or upon acknowledged general principles can be made." Thorpe v. R. & B. R. Co., 27 Vt. 140, 62 Am. Dec. G25. Per Redfield, J. It is within the province of the legislature to pass laws for the pro- motion of safety, health and morals of the people and the regulation and control of the traffic in ardent spirits is within the discretion of the legisla- ture under the police power of the state Farmville v. Walker. 101 Va. 323, 4:: S. E. 55, 8, til L. R. A. 125. 20. state v. Fitzpatrick, 16 R. I. 54, 57. 11 Atl. 767. Per Durfee, J. 21. Giozza v. Tiernan, 148 U. S. 657, 13 Sup. Ct. 721. 37 L. Ed. 599. Per Mr. Chief Justice Fuller. "Regulations respecting the pur- suit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business or occupation they shall apply are ques- tions for the state to determine, and their determination comes within the proper exercise of the police power by the state, and unless the regulations are so utterly unreasonable and ex- travagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, inter- fered with or destroyed without due process of law, they do not extend be- yond the power of the state to pass, and they form no subject for Federal interference." Gundling v. Chicago, 177 U. S. 183, 43 L. Ed. 725, 20 Sup. Ct. 633. Per Mr. Justice Peckham. With respect to the act of sale, over which the power of legislature is con- ceded to be unlimited, and with re- spect to the responsibility which shall attach to the doing of thai act or the conditions under which it may be dune the way seems open for the legislature to enact whatsoever it pleases, state v. Ludington, 33 Wis. 107, 115. Per Dixon. 0. J. It is entirely within the prov- ince of the legislature, in the ex- ercise of the police power of the state to regulate the sale of intoxicating 1)8 POWER OF STATE TO REGULATE TRAFFIC. [§ 83 This power known as the police power is one of which the legis- lature cannot divest itself and such body is the exclusive judge of the manner in which it shall be exercised and its action should be liberally construed. 22 And a regulation of the liquor traffic may be an inconvenience to the dealer but no matter what incon- venience may be imposed upon him by the legislature, so long as it bears equally upon all persons falling in his class, he has no right to complain. 23 Though the regulations or conditions sur- rounding the traffic in intoxicating liquors may be more onerous than those imposed upon another business, yet they may be sus- tained because the business of selling intoxicating liquors more seriously affects the health, morals and general welfare of the public than any other business. 24 § 83. Right to prohibit traffic generally. The power of the state in respect to the liquor traffic is not limited to the imposing of conditions or restrictions merely which liquors and to impose such restric- tions upon those engaged in the bus- iness as will carry out its purpose. State v. Settles, 34 Mont. 448, 87 Pac. 445. Per Brantly, J. A bond may be required in the exercise of the power to regulate the legislature may impose such condi- tions precedent to the right to en- gage in the traffic as it may deem just and may require the giving of a bond as such. Bell v. State, 28 Tex. App. 90, 12 S. W. 410. See chapters XI,-XV, herein as to licenses and 22. in re O'Brien, 29 Mont. 530, 545, 75 Pac. 200. In a case in the United States Cir- cuit Court it is declared that the state cannot barter away or in any manner abridge any of its inherent powers, as for instance its right in the exercise of its police power to regulate, restrict or prohibit the traffic in intoxicating liquors, and that any contracts to that end are void upon general principles, and can- not be protected by the provisions of the national constitution. Kresser v. Lyman, 74 Fed. 7G5, declaring that this proposition is abundantly settled by decisions of the highest federal tribunal. Reluctance of courts to inter- fere wita law. — The evils attending the vice of intemperance in the use of spirituous liquors are so great that a natural reluctance is felt in appear- ing to interfere, even on constitu- tional grounds, with any law whose avowed purpose is to restrict or pre- vent the mischief. Scott v. Donald, 165 U. S. 58, 91, 17 Sup. Ct. 265, 41 L. Ed. 632. Per Mr. Justice Shiras. 23. State v. Settles, 34 Mont. 448, 87 Pac. 445. 2 1. State v. City of New Orleans, 113 La. 371, 36 So. 999. § m I'OWKK OF STATE, TO KEOILATH TRAFFIC. 99 partake of the character of regulation or control. The legisla- ture may, when in its discretion it deems it advisable, pass laws which are prohibitory in their nature and result, either as to the manufacture or sale of intoxicating liquor, or as to both. 25 The 25. United States. — Phillips v. Mobile, 208 U. S. 472, 28 Sup. Ct. 370; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346; Foster v. Kansas, 112 U. S. 201, 5 Sup. Ct. 8, 97, 28 L. Ed. 629; State v. Bradley, 26 Fed. 289. Alabama.— Marks v. State (1909), 48 So. 364; Feibelman v. State, 130 Ala, 122, 30 So. 384. A r kan sas. — Drew County v. Ben- nett, 43 Ark. 365. California. — Reed v. Collins, 5 Cal. App. 494, 90 Pac. 973. Connecticut. — Appeal of Allyn (1909), 71 Atl. 794, 795; State v. Wheeler, 25 Conn. 290. Delaware. — State v. Allmond, 2 Houst. 612. Georgia. — Barker v. State, 118 Ga. 35, 44 S. E. 874. Illinois. — Jones v. People, 14 111. 196. Iowa. — Kaufman v. Dostal, 73 Iowa 691, 36 N. W. 643: McLane v. Leicht, ti'.» Iowa 401, 29 N. W. 327; Santo v. State, 2 Iowa 1G5, 63 Am. Dec. 487. Kansas. — State v. Mugler, 29 Kan. 252; Prohibitory Amendment Cases, 24 K:ui. 700. Kentucky. — Brown v. Common- wealth, 98 Ky. 652, 34 S. W. 12; Stickrod v. Commonwealth, 86 Ky. 285, 5 S. W. 580; Anderson v. Com- monwealth, l."> Push 485. Louisiana.- New Orleans v. Smytlie, 116 La. 685, 41 So. 33. Maine. Stale v. Gurney, ."7 Me. 156, 58 Am. Dec. 782. Maryland.— Fell v. State, 42 Ml. 71, 20 Am. Rep. 83. Michigan. — Robinson v. Haug, 71 Mich. 38, 38 N. W. 668; People v. Gallagher, 4 Mich. 244. Mississippi. — Rohrbocker v. City of Jackson, 51 Miss. 735. Missouri. — State v. Bixman, 162 Mo. 1, 62 S. VV. 828. Nebraska. — Hunzinger v. State, 39 Neb. 653, 58 N. W. 194. New York. — People v. Quant, 2 Park. Cr. 410. North Carolina. — Guy v. Commis- sioners, 122 N. C. 471, 29 S. E. 771. Ohio.— Gordon v. State, 46 Ohio St. 607, 638, 23 N. E. 63, 6 L. R. A. 749 ; State v. Frame, 39 Ohio St. 399, 408. Oklahoma.— Ex parte Cain (1908), 93 Pac. 974. Oregon. — State v. Baker, 50 Oreg. 381, 384, 92 Pac. 1076. Rhode Island. — State v. Fitzpatrick, 16 R. I. 54, 11 Atl. 707; State v. Amery, 12 R. I. 64. Texas.— Ex parte Bell, 24 Tex. App. 428, 6 S. W. 197. Vermont. — State v. Lovell, 47 Vt. 493; Lincoln v. Smith, H Vt. 328. Virginia. — Savage v. Common- wealth, 84 Va. 619, 5 S. E. 565. Wisconsin. — State v. Ludington, 33 Wis. 107. Wyoming. — Stale v. City Council, 7 Wyo. 417. 52 Pac. 975, 40 L. R. A. 710. Remarks of courts sustaining rule. United States. — In a case in the United states Supreme Court it was said that the question as to the consti- tutional power of a state to prohibit the manufacture and sale of in 100 POWER OF STATE TO REGULATE TRAFFIC. [§83 legislature in passing prohibitory measures effecting this traffic acts in the exercise of the police power as in the case of enact- cating liquors was no longer an open one in that court. Foster v. Kansas, 112 U. S. 201, 206, 5 Sup. Ct. 8, 97, 28 L. Ed. 629. And again in the same court it was said: "If any state deems the retail and internal traffic in ardent spirits injurious to its citizens and calcu- lated to produce idleness, vice, or de- bauchery, I see nothing in the con- stitution of the United States to pre- vent it from regulating and restrain- ing the traffic, or from prohibiting it altogether, if it thinks proper." License Cases, 5 How. (N. S.) 504, 577, 12 L. Ed. 256. Per Mr. Chief Justice Taney. Alabama. — In a recent case in Ala- bama, it is declared: "That the po- lice power of a state may be ap- propriately exercised in the prohibi- tion of dealings in intoxicants has been too long settled to now admit of further consideration with a view to its denial." State v. Skeggs (Ala. 1908), 46 So. 268, 273. Per Mc- Clellan, J. District of Columbia. — "The mat- ter of regulating, and even the pro- hibition, of the sale of intoxicating liquors, notwithstanding the grave arguments against the expediency of legislative action on the subject, and notwithstanding the still graver argu- ments based upon the assumed en- croachment of such legislation upon individual freedom and natural right, is now generally conceded to be a proper subject for legislative control." Mackall v. District of Columbia, 16 App. D. C. 301. drorqia. — " The right to regulate or prohibit the manufacture and sale of intoxicating liquors for use as a bf-vfrage is well established as being within the exercise of the police powers of the state to protect the public against the evils which re- sult from the excessive use of ardent spirits." Roberts v. State, 4 Ga. App. 207, 217, 60 S. E. 1082. Per Hill, J. In this case however, the court further declared that : " To say that the legislature has the right to for- bid the manufacture or sale of every liquid, regardless of the amount of alcohol it contains, or regardless of the presence of other ingredients, which prevent any use of the liquid as a beverage, is to give an elastic construction to the right of legisla- tion, not warranted by the constitu- tion or laws, or supported by any re- spectable authority." Indiana. — In a recent case in In- diana it is said that the liquor traffic being necessarily dangerous or destructive, is a fit subject for the exercise of the police power and the legislature may license, regulate or prohibit the same. Schmidt v. City of Indianapolis, 168 Ind. 631, 80 N. E. 632. Maine. — In a recent case in Maine it is decided that the constitutional right of the legislature to regulate or prohibit the sale and keeping of intoxicating liquors and to declare certain liquors intoxicating within the meaning of the law governing in- toxicating liquors irrespective of the intoxicating character of such liquors as a matter of fact, both under the state and Federal constitutions, has been so universally answered in the affirmative, both by the decisions in that state and by the Supreme Court of the United States, that it is no longer a question for argument or even of doubt. State v. Frederickson, 101 Me. 37, 63 Atl. 535. New Jersey. — The right to regu- § 83] POWER OF STATE TO REGULATE TRAFFIC. 101 ments which are in the nature of regulation and the judgment or discretion exercised by the legislature in this respect is not a mat- ter for the courts to pass upon. So it is said that if in view of diminishing the evils resulting from the intoxicating liquor traffic a system of regulation is adopted which practically prohibits the sale of intoxicating liquors as a beverage it is not for the court to say that there has been a misuse of legislative discretion. 26 And late the sale of intoxicating liquors, at retail by the legislature or by muni- cipalities or other authority, under legislative power given, is within the police power of the state and is prac- tically limitless and may extend to the prohibition of the sale altogether. Meehan v. Excise Commissioners, 73 N. J. L. 382, 64 Atl. 689. Rhode Island. — The right of the state to regulate, control or prohibit the liquor traffic within its borders is one generally conceded. State v. Fitz- patrick, 16 R. I. 54, 57, 11 Atl. 7G7. Vermont. — So far as prohibiting the traffic in intoxicating liquors is concerned it has several times been properly decided that such a law as a police regulation is valid. Atkins v. Town of Randolph, 31 Vt. 226. Gift of liquors. — In Texas it was decided in one of the earlier cases that the legislature had no power under the constitution to prohibit the gift of intoxicating liquor. Stall- worth v. State, 16 Tex. App. 345. Traffic on navigable waters.— In Indiana a general statute making it unlawful to retail intoxicating li- quors without a license] but silent as to navigable waters has been construed as being an absolute prohibitory law as to the right to sell on boats ply- ing the Ohio river within the juris- diction of the state of Indiana. Welsh v. State. 126 Ind. 71, 25 N. E. 883, 9 L. R. A. 664. 2G. Gordon v. State, 46 Ohio St. 607, 638, 23 N. E. 63, 6 L. R. A. 749n. License does not protect against.— It has been decided that the state may pass a law prohibiting the sale of intoxicating liquors in any part of the state notwithstanding a party to be affected by the law may have procured a license under the gen- eral license laws of the state which has not expired. Fell v. State, 42 Md. 71, 20 Am. Rep. 83, holding that a license is a mere permit, subject to be modified or annulled at the pleas- ure of the legislature, who have the power to change or repeal the law under which the license was granted. Malt liquors whether intoxi- cating or not. — In the exercise of this power it has been decided that the legislature can in connection with other liquor prohibit the sale of malt liquor whether intoxicating or not. Feibelman v. State, 130 Ala. 122, 30 So. 384, wherein the court said: "If the prohibition should in terms go only to the sale of intoxicating malt liquors, there would be left open such opportunities for invasions of the law and there would arise such difficulties of proof as that the law could not be effectively executed; and the law- makers having the undoubted power to prohibit and to prevent the sale of intoxicating malt liquors and to en- act to that end a law which tan be executed so as to secure it, and find- ing that this cannot be accomplished 102 POWER OF STATE TO REGULATE TRAFFIC. [§ 84 in this connection it has been decided that whenever in its judg- ment it is necessary for the protection of the health, morals, peace and safety of the people the legislature may prohibit the manu- facture and sale of intoxicating liquors in the state for medical, scientific and mechanical purposes; and in the interest of the public welfare it may impose any conditions upon the conduct of those industries short of prohibition which it may deem proper. 27 So the legislature has power, as a police regulation, to prohibit the sale of intoxicating liquor, subject only to the laws of the United States regulating imports, and these protect it only in the hands of the importer, in the original cask or package. 28 And it is decided that a prohibitory law may be constitutionally applied to the sale of liquor manufactured by the seller before the passage of the law. 29 § 84. Effect of license from United States. The power of a state in regard to the liquor traffic within the state is supreme and one who seeks to sell intoxicating liquors within a state must look to the laws of that state for such au- thority. And the fact that the government of the United States has granted to such person a license under the revenue laws of the United States confers upon him no power to carry on such traffic until he has complied with the laws of the state in which he seeks to conduct it. 30 So it has been said : " It has been admitted in without extending the prohibition to would open the door to mischievous all malt liquors, whether intoxicating evasions of the statute aimed at sales or not, such extension, necessary to of intoxicating liquors. Feibelman v. prevent the sale of intoxicants, is as State, 130 Ala. 122, 125, 30 So. 384, essentially the proper exercise of the 27. State v. Durein, 70 Kan. 13, 80 police power as the inhibition with Pac. 987. reference to intoxicants." Per Mc- 28. State v. Allmond, 2 Houst. Clellan, C. J. (Del.) 612. Fruit preserved in alcohol.— It 29. Stickrod v. Commonwealth, 86 has been said that there is no doubt Ky. 285, 5 S. W. 580. but that bona fi'l<- sales of fruit pre- 30- United States.— License Tax served in alcoholic liquor may be pro- Cases, 5 Wall. 462, 18 L. Ed. 497, hibited because to allow such sales McGuire v. Commonwealth, 3 Wall. §84] POWER OF STATE TO REGULATE TRA1TK . li»:; the past by statesmen of every class, as well as all eminent jurists that each state has the sole power of regulating their own internal police; to define and punish crime; to declare and enforce the rights of their citizens; and to establish the relations and pre- scribe the duties of their citizens. It has never been supp< that Congress could interfere with or exercise such power, and to hold that Congress could license citizens of a state, to violate its laws, would be an invasion of the constitutional power of the state, that would be subversive of our republican form of govern- ment." 31 So a license granted by the United States to a retail liquor dealer affords no protection against the penalties imposed for the sale of intoxicating liquors in violation of the laws of the state. 32 And in another case it is decided that payment of taxes to the Federal government on sales made in a tenement within the state is no bar to an indictment under the statutes of such state for keeping the tenement for such sales in violation of law, and thereby maintaining a common nuisance. 33 And steamboats en- gaged in interstate commerce, must where they land within the jurisdiction of a state, comply with the laws of such state before they can sell liquor at such landings. 34 387, 18 L. Ed. 220. See Endleman v. United States, 86 Fed. 456, 30 C. C. A. 186. Arkansas. — Pierson v. State, 39 Ark. 219. Illinois. — Block v. Town of Jackson- ville, 36 111. 301. Iowa. Stommel v. Timbrel, 84 Iowa 336, 51 N. W. 159; State v. McCleary, 17 Iowa 44. Maine. — State v. Delano, 54 Me. 501. Massachusetts. — Commonwealth v. Holbrook, 10 Allen 200. Common- wealth v. Thorniley, 2 Allen 445. Minnesota. — State v. Funk, 27 Minn. 318. North Carolina. — State v. Douns, 116 N. C. 1064, 21 S. E. 689, citing State v. Stevens, 114 N. C. 873, 19 S. E. 861. Virginia. Commonwealth v. Sheck- els, 78 Va. 36. 31. Block v. Town of Jackson- ville. 36 111. 301, 304, 305. Per Walker, J. :i-2. state v. Baughman, 20 Iowa 407. 33. Commonwealth v. Sanborn, 116 Mass. 61. 34. Barrel! v. Speed, 113 Term. 224, 81 s. W. 840; Foppiano v. Speed, 113 Tenn. L67, S2 S. W. 222. 104 POWER OF STATE TO REGULATE TRAFFIC. [§ 85 § 85. Cannot prohibit having liquors in one's possession. While the state in the exercise of the police power may pro- hibit the sale or giving away of intoxicating liquors yet this power is one which is justified by the fact that such legislation is to protect the public health, morals and safety, and as such liquors may be a legitimate subject of property the state cannot prohibit one from having them in his possession, and ownership when such possession and ownership is for his own personal use and is not injurious to the public. This question is considered in a recent case in Kentucky where the constitutionality of a statute prohibiting a person from having intoxicating liquor in his possession was considered. The court said : " The right to use liquor for one's own comfort, if the use is without direct in- jury to the public, is one of the citizens' natural and inalienable rights, guaranteed to him by the constitution and cannot be abridged as long as the absolute power of a majority is limited by our present constitution. The theory of our government is to allow the largest liberty to the individual commensurate with the public safety, or, as it has been otherwise expressed, that government is best which governs the least. * * * We hold that the police power — vague and wide and undefined as it is — has limits, and in matters such as that we have in hand its utmost frontier is marked by the maxim ' Sic utere tuo ut alienum non laedas.' " 35 So a statute prohibiting the keeping of intoxicating liquors for sale does not aply to liquors which are kept by a per- son entirely for his own use. 36 And it has been decided that a code provision that no person shall, without a state license there- for, " keep in his possession, for another, spirituous liquors " is 35. Commonwealth v. Campbell, Rep. 743, holding an act known as (Ky. WOO), 117 S. W. 383. Per the " Cold Storage Act " not a legiti- Barker, J. mate exercise of the police power. See also Ex parte Brown, 38 Tex. 36. State v. Fitzpatrick, 16 R. I. Cr. 295, 42 S. W. 554, 70 Am. St. 54, 11 Atl. 767. §80] I'DWKl; uE STATE TO REGULATE TRAFFK . 105 unconstitutional as being an abridgment of the privileges and im- munities of the citizen without any legal justification. 37 § 86. Prohibition by state — where property diminished in value. In an early case in Indiana it is decided that liquor is an article of use and traffic in that state and is property as is also a distillery and that the legislature cannot by a general law annihilate the entire property in liquors in that state. 38 And in one of the earlier cases upon this subject decided by the United States Supreme Court it was declared that if a case were presented in which a person owning liquor or other property at a time a law was passed by the state absolutely prohibiting any sale of it, it would be a very grave question whether such a law would not be inconsistent with the provision of that amendment which forbids the state to deprive any person of life, liberty, or property with- out due process of law. 39 And in a later case it was said by the 37. State v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847. The court said : " It can hardly be ques- tioned that the right to possess prop- erty is one of these rigid s and that the right embraces the privilege of a cit- izen to keep in his possession property for another. It is not denied that the keeping of property which is inju- rious to the lives, health or comfort of all persons may be prohibited un- der the police power. * * * The keep- ing of liquors in his possession by a person, whether for himself or for another, unless he does so for the il- legal sale of it, or for some other improper purpose, can by no possibil- ity injure or effect the health, morals or safety of the public. It is an abridgement of the privileges and immunities of the citizen without any legal justification, and therefore void." Per Snyder. P. 38. Beek v. The State, 6 Ind. 501, 63 Am. Dec. 391. holding that an act "to prohibit the manufacture and sale of spirituous and intoxicating liq- uors " was unconstitutional and void. The court referred to § 24 of Art. 1 of the constitution of the state pro- viding that no law shall be passed impairing the obligation of a con- tract and said: "Yet here is a law, which, by prohibiting an entire pur- suit and rendering valueless all the property involved in it, must, of ne- cessity almost, impair all executing contracts that have grown out of that pursuit, and render them utterly in- capable of fulfillment." 39. Bartemeyer v. Iowa, 18 Wall. (U. S.) 129, 21 L. Ed. 929. It was said in this case: " I have no doubt of the power of the state to regulate the sale of intoxicating liquors when such regulation does not amount to the destruction of the right of prop- erty in them. The right of property in an article involves the power to sell and dispose of such article as 106 POWER OF STATE TO REGULATE TRAFFIC. [§ 86 same court : " "We do not mean to say that property actually in existence, and in which the right of the owner has become vested, may be taken for the public good without due compensation. But we infer that the liquor in this case * * * was not in existence when the liquor law of Massachusetts was passed. Had the plaintiff in error relied on the existence of the property prior to the law, it behooved it to show that fact. But no such fact is shown and no such point is taken." 40 Subsequently in a case in the United States Supreme Court in which it appeared that the plaintiff was the owner of a brewery and the prohibitory law of the state prohibited not only the sale of intoxicating liquors, but also prohibited their manufacture, and in which the evidence established that his brewery was worthless except for the purpose of manufacturing beer, the conclusion was reached that while the law did affect the value of plaintiff's property it was not in violation of the constitution or laws of the United States. 41 And well as to use and enjoy it. Any act which declares that the owner shall neither sell nor dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due proc- ess of law. Against such arbitrary legislation by any state the four- teenth amendment affords protection. But the prohibition of sale in any way, or for any use, i^ quite a differ- ent thing from a regulation of the sale or use so as to protect the health and morals of the community. All property even the most harmless in its nature, is equally subject to the power of the state, in this respect with the most noxious." Per Mr. Justice Field. 40. Beer Co. v. Massachusetts, 97 U. S. 25, 32, 24 L. Ed. 989, Per Mr. Justice Bradley. 41. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273. 31 L. Ed. 205. Mr. Justice Harlan said in this con- nection: "It is contended that as their respective breweries were erected when it was lawful to engage in the manufacture of beer for every pur- pose ; as such establishments will be- come of no value as property, or, at least, will be materially diminished in value, if not employed in the man- ufacture of beer for every purpose; the prohibition upon their being so employed, is, in effect a taking of property for public use without com- pensation, and depriving the citizen of his property without due process of law. In other words, although the state, in the exercise of her police powers, may lawfully prohibit the manufacture and sale, within her limits, of intoxicating liquors to be used as a beverage, legislation hav- ing that object in view cannot be en- forced against those who, at the time, happen to own property, the chief value of which consists in its fitness for such manufacturing pur- poses unless compensation is first §86] POWER OF STATE TO REGULATE TRAFFIC. HIT the conclusion reached by the United States Supreme Court was followed in a case in Iowa in which it was declared that a pro- hibitory liquor law was nol unconstitutional on the ground that it reduced the value of property previously erected and used for the manufacture and sale of liquors declared by the law to be intoxi- cating. 42 And in an early case in Michigan the court said that it negatived the assumption that because the defendant had a large investment in money in buildings and fixtures connected with his brewing business which were useless for any other purpose the legislature could not deprive him of the use of such property for the purpose for which it was designed without providing compen- sation for his buildings and fixtures. 43 made for the diminution in the value of their property, resulting from such prohibitory enactments. This inter- pretation of the Fourteenth Amend- ment is inadmissible. It cannot be supposed that the states intended, by adopting that Amendment to im- pare restraints upon the exercise of their powers for the protection of the safety, health or morals of the com- munity. * * * The principle, that no person shall be deprived of life, liberty, or property, without due proc- ess of law was embodied in substance, in the constitutions of nearly all, if not all, of the states at the time of the adoption of the Fourteenth Amendment : and it has never been re- garded as incompatible with the prin- cipal, equally vital, because essential to the peace and safety of society, that all property in this county is held un- der the implied obligation that the one is use of it shall not be in- jurious to the community. * * * The exercise of the police power by the destruction of property which is itself a public nuisance, or tie pro- hibition of its use in a particular way. whereby its value becomes de- preciated, is very different from tak- ing property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated ; in the other unoffending property is taken from an innocent owner. It is true, that, when the defendants in these cases purchased or erected their breweries, the laws of the state did not forbid the manufacture of in- toxicating liquors. But the state did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged," 42. Kaufman v. Dostal, 73 Iowa 691, 36 X. YV. G43. The evidence in this case showed that the defendant was engaged in the manufacture of beer, that the brewery had been es- tablished on the same premises sev- eral years prior t<> the passing of the statute under which the action was commenced; thai the brewery was worth for the purpose for which it was erected, about $60,000, and that for any other purpose, the brewery and real estate described in the pe- 1 it inn was not worth more than ooo. •«:*. IVo-le v. Hawley, 3 Midi. 330. 108 POWER OF STATE TO REGULATE TRAFFIC. [§§ 87,88 § 87. Same subject continued. Property in an article is the right to have and use it subject to law. The right of sale is not an essential ingredient which may not be separated from the ownership; and a law regulating or prohibiting the sale, does not take away any vested right of prop- erty. 44 There is no vested right acquired by those engaged in the liquor traffic, which prevents its being forbidden by an act of the general assembly. 45 In the exercise of its police powers, a state may prohibit under penalties the exercise of any trade or employment which is found to be hazardous or injurious to its citizens, without providing compensation to those upon whom the prohibition operates. 46 So in a case in New York it is said that prohibiting the sale of liquor does not destroy it as property and that although unconstitutional to pass laws depriving a citi- zen of his property, a law, the tendency of which is to reduce the price of certain species of property in the market, will not, for that reason, be declared unconstitutional. 47 § 88. Prohibition as affecting property values concluded. From an examination of the cases cited in the preceding sec- tions it will be seen that the law is settled that independent of any constitutional limitation the power of the legislature to pro- hibit the liquor traffic except so far as interstate commerce may be affected is absolute, while the facts may be that property has been purchased and money expended in the erection of a plant for the manufacture of intoxicating liquors and that such manufacure was lawful at the time and that the property will be greatly 342, in which case it was further said: whom the prohibition operates." Per " In the exorcise of its police power Wing, J. a state has full power to prohibit 44. State v. Allmond, 2 Houst. under penalties the exercise of any (Del.) 612. trade or employment which is found 45. Guy v. Commissioners, 122 N. to be hazardous or injurious to its C. 471, 29 S. E. 771. citizens and destructive of the best 46. People v. Hawley, 3 Mich. 330. interests of society, without provid- 47. People v. Quant, 12 How. Pr. ing compensation to those upon (N. Y.) 83, 89. Per James, J. § gj)] POWER OF STATE TO REGULATE TRAFFIC. 109 diminished in value or the plant rendered practically valueless by the enactment of a prohibitory law yet the state may in the • xcrcise of the police power pass a law which absolutely prohibits the sale or the manufacture of such liquors. Such a rule may at first seem to work a hardship and naturally does to the person who has invested his money in such an enterprise. It must how- 1 vi it be remembered that the decisions are uniform that the right to sell or manufacture intoxicating liquors is not an inherent one. It is a mere privilege which a citizen may exercise and is subject to the right of the state to legislate in regard thereto whenever the public morals, health, safety or peace may require it. Therefore since the right to traffic in liquor is of such a char- acter and the traffic therein so vitally affects the public, being the frequent cause of disorder and pauperism, the source of injury to the health, and demoralizing in its effect it should follow that the state should have full and comprehensive power to entirely prohibit the traffic therein without being hampered in any way by the effect such legislation may have upon property values. § 89. Power of state to engage in liquor traffic. The state under its police force can itself assume entire control and management of those subjects, such as liquor, that are danger- ous to the peace, good order, health, morals and welfare of the people even when trade is one of the incidents of such entire con- trol and management on the part of the state. 48 This power of the state is generally exercised through state or local agents or by means of what are known as dispensaries, the liquors being bought and sold by the state or local government alone through such agencies, subject frequently to conditions by which the sale is 48. State v. Aiken, 42 S. C. 222, trade is simply an incident of police 20 S. E. 221, 2G L. R. A. 345. Per regulation and so long as buying and Mr. Justice Gary, who also says in selling are in pursuance of police reg- this connection that the right of the illation they are entirely free from state to engage in liquor traffic where legal objection. 1U) \KK OF STATE TO REGULATE TRAFFIC. [§ 90 restricted to medical, chemical or mechanical purposes. These laws as to dispensaries have in some cases been held to be uncon- stitutional as being in conflict with the commerce clause of the United States Constitution. Independent however, of. any con- flict with this power of the Federal government these laws have in most cases been sustained, as will be seen from the following sections. And it would seem that in enacting such laws the legislature should look particularly, if the act is to be sustained, to the exclusion of any provision in such a statute which conflicts with this clause of the United States Constitution. § 90. Dispensary laws — Alabama decisions. The question of the constitutionality of dispensary laws, both under state constitutions and the United States Constitution, is one which has been before the courts several times in recent years and has been considered in its many phases. In a case in Ala- bama in which the validity of an act was questioned upon numer- ous grounds its constitutionality was sustained by the court in a lengthy opinion. In this case it was decided that the section of a dispensary law which prohibits the sale of vinous, sprituous or malt liquors in any county of the state in which a dispensary is authorized to be located, except as provided for in said act, and which then further provides that " nothing in this act shall be so considered as to prevent any person who manufactures spirituous, vinous or malt liquors in a brewery or distillery from selling the same by wholesale in sealed packages, to dispensers or to liquor dealers who may be otherwise authorized to sell such liquors " has reference solely to counties in the state in which dispensaries are authorized to be located, and that neither the prohibition of the . section nor the proviso has any reference to sales by distillers or brewers or dealers or other persons made without the county and that therefore such section of the act does not, in any way, in- fringe upon the exclusive power of Congress to regulate interstate commerce, nor has it any application to any phase of interstate § 90] row;... lTE to regi late traffk . m commerce. 49 It was also declared in this case that the legislature having the right to prohibit entirely the sale of intoxicating liquors, may, by act passu! for that purpose, prohibit its sale by individuals and private corporations, and commit the traffic ex- clusively as a mode of regulation to counties and towns without violating any inalienable right of the pursuit of happiness, or other right by the individual citizen, and without infringing upon the rule against class and unequal legislation. And it was also held that the act was not the establishment of a private enterprise in which the state is interested in violation of the constitution. And it was further decided that a dispensary law is not violative of a constitutional provision that " no corporation shall engage in any business other than that expressly authorized by its char- ter " since such provision has reference only to private corpo- rations. And the conclusion was also reached that the dispensary law is not violative of a constitutional provision that " no law hereafter enacted shall create, renew or extend the charter of more than one corporation," since conferring on towns, cities and counties the power to sell spirituous, vinous or malt liquors does not create, renew or extend the charters of such corporations within the meaning of such provision which has no application to municipalities but to private corporations. And the court likewise decided that where by a genera] law the establishment of dispensaries in cities and towns is authorized and a dis- pensary is established in a town under the provisions of such act, a local law regulating the method of obtaining licenses for the Bale of liquors therein is repealed and such local laws are not such laws as tend " to prohibit, retard, restrain or restrict the traffic in spirituous, vinous or malt liquors " which are by the dispensary law expressly excluded from the repealing clause of the act. And in a later case in this state a dispensary act author- izing all incorporated towns and cities in a certain county to 4J>. Sheppard v. Dowling, 127 Ala. 1. 28 S. E. 791, 85 Am. St. Rep. 68. 112 POWER OF STATE TO REGULATE TRAFFIC. [§ 90 establish and operate dispensaries was held valid. 50 And again in a more recent case it is decided that an act which delegates authority to a municipality to operate and maintain a dispensary for the town with corporate funds, gives the town the authority to elect the commissioners every four years, provides that the busi- ness shall be conducted by the intendant and aldermen through a dispenser and the commissioners, requires daily reports to be made to the town treasurer, and appropriates the profits arising from the business to the town for the schools and such other ob- jects and purposes as may be designated by the town is not void as conferring legislative authority upon the town. 51 In another case in Alabama however an act to establish a dispensary in a town was held unconstitutional and void in that it sought to con- fer upon the commissioners therein named and their successors or the corporation itself, the power to manage, carry on and if they saw fit, to suspend or discontinue the pharmacy. 52 And in this state the act approved Oct. 1st, 1903, entitled: "An act to establish and regulate a dispensary in the town of Elba, Coffee 50. Childers v. Sheppard, 142 Ala. 385, 39 So. 235. 51. Ex parte Hall, (Ala. 1908), 47 So. 199. The court said: "The act makes it unlawful to sell liquors in said town, except by a dispensary ; and this is legislation by the legisla- ture and no delegation to the town. All authority given the town is sim- ply to avail itself of the exception made; otherwise, prohibition should prevail, under the act of the legis- lature. Clearly the legislature would have the right to prohibit the sale of liquors, except through an author- ized dispensary: and the fact that the opening of the dispensary is not made mandatory in no sense gives the municipality the authority to legis- late, nor docs it legislate by failing to open said dispensary. Moreover there is nothing in the act authoriz- ing the town to discontinue at will; but, if there was, we think this option can be delegated to a municipality, the exercise of which would in no sense be legislation on its part." Per Anderson, J. The operation of a dispensary by a municipality for the sale of liquor is the exercise of a franchise, and the municipality must derive its right from some authority granted by the sovereign. City of Uniontown v. State, 145 Ala. 471, 39 So. 814. 52. Harlan v. State, 13G Ala. 150, 33 So. 858, following Mitchell v. State, 134 Ala. 392, 32 So. 687, in which such an act was held unconsti- tutional in that, by so doing, it sought to delegate legislative powers. § 91] POWER OF STATE TO REGULATE TRAFFIC. H3 County, Alabama, for the sale of spirituous, vinous and malt liquors, and to establish and perpetuate board of commissioners for the management of said dispensary" (Local Acts 1003, p. 443) was held to be unconstitutional and void, in that by its terms said act granted an exclusive right to the commissioners provided for therein as individuals, and their successors to estab- lish and maintain a dispensary, and thereby traffic in liquor in the town of Elba, and was therefore in violation of the organic law prohibiting monopolies. 53 The court in construing this act declared that by its terms the money for creating the dispensary came from no governmental source but was to be derived solely from individuals, that the dispensary was neither the property of the state, county or town and was not controlled by any govern- mental agency but by the board of managers or commissioners whose duties were to superintend and supervise and who had the exclusive right to appoint a dispenser and to remove him and appoint another whose duty it was to sell for cash and turn the money over to the secretary of the board who was also selected by such commissioners. § 91. Dispensary laws — Other decisions. In Georgia it has been decided that the general assembly of that state, by virtue of its police powers, has the authority to regulate and control the sale of all intoxicating liquors and can establish dispensaries for an exclusive sale of such liquors, under the management of agents or officials created for this purpose. 54 And it was also held in the same case that a local act estalishing a dis- pensary in any county of the state for the exclusive sale of liquors is not violative of tin 1 constitutional rights of any citizen and such legislation is not prohibited by any provision in the constitu- r»3. Town of Elba v. Rhodes, 142 30 S. E. 759, 42 L. R. A. 181. Ala. 680, 38 So. SOT. •"»>»• Butler v. Merritt. 113 Ga. 238, R4. Plumb v. Christie, 103 Ga. 686, 38 S. E. 751. 114 POWER OF STATE TO REGULATE TRAFFIC. [§ 91 tion of the state or of the United States. And in a later case in Georgia it was held that the local option law did not name the state or manifest any intention to include the state within its operations and therefore such a law does not prohibit the state from establishing and maintaining dispensaries for the sale of intoxicating liquors, through public officers, for public profit and for the regulation of the liquor traffic. 54 a And in a case in South Carolina it was decided that while a section of an act prescribes a method of establishing dispensaries in one county different from other sections of the state yet where the provisions of such section are general in their application to the class or locality to which they apply and apply equally to all persons within that locality the act is constitutional and neither deprives the citizens of that locality of equal protection of the law nor is it subject to the objection that it is a special act. 55 And in an earlier case in the same state it was said upon this question of the power of the state to assume control of the liquor traffic by a dispensary law that it would be an anomaly in the law to hold that the principal could delegate to an agent a greater power than the principal himself could exercise. 56 Again in a case in Virginia it is decided that the legislature may permit a municipality to establish a dispensary, though in so doing it may render necessary the expenditure of money and ultimately the imposition of a tax. 57 But it has also been decided in this con- nection in North Carolina that the power to authorize municipal 55. Severance v. Murphy, 67 S. C. looking to the ascertainment of public 400, 46 S. E. 35. opinion on the subject have not been In South Carolina it is decided may be maintained by one who is a that a county dispensary board has resident and taxpayer of the town the implied power to establish and though he may not be a qualified maintain a bottling plant. State v. voter. Croxton v. Truesdel, 75 S. C. Cain, 78 S. C. 348, 58 S. E. 937. 418, 50 S. E. 45. An action for an injunction to pre- 5«. Stale v. Aiken, 42 S. C. 222, vent the location of a dispensary in 20 S. E. 221. 26 L. R. A. 345. a town on the ground that the pre- r ~- Farmville v. Walker, 101 Va. liminary steps required by statute 323, 43 S. E. 558, 61 L. R. A. 125. § 92] POWER OF STATE TO REG1 LATE TRAFFIC. \\~, authorities to raise money by taxation, or by loan, or by pled- credit, for the purpose of aiding others in the sale of liquors, or to be used by the bodies themselves for that purpose, without a vote of the people, clearly cannot be exercised because such money and the purposes for which it is used cannot be called necessary expenses of the municipal bodies. 58 § 92. Dispensary laws — federal decisions. In a case in the United States Circuit Court it was held that an act which permits the chief dispenser to purchase in other states alcoholic liquors, and to import them into his own state for the purpose of selling them, for use and consumption, at retail within the state, and forbids all other persons from so purchasing and importing for their individual use and consump- tion, discriminates against all other citizens of the state. 59 And such an act was held to make a discrimination against all persons in the trade in other states w T ho are not patronized by the dis- penser by forbidding them to seek customers within the state and to enjoy a commercial intercourse secured to others in the state. 60 And it was also said in this case that so far as the dis- pensary law forbids a citizen to purchase in other states and to import into his own state, alcoholic liquors for his own use and consumption, the products of other states, it discriminates against the products of other states and such discrimination cannot be made under the guise of the police power. 61 The constitutionality of this act was subsequently considered by the United States Supreme Court on an appeal from the decision just referred to and it was declared that the act did not prohibit the manufacture use, and sale of intoxicating liquors but on the contrary recognized such liquors as commodities which could be lawfully made, bought 58. Garsed v. Greensboro, 120 N. G°- Donald v. Scott. 67 Fed. 854. C. 159. 35 S. E. 254. 61. Donald v. Scott, G7 Fed. 854, BO. Donald v. Scott, G7 Fed. 854, 857. Per Simonton, J. 857. 116 POWER OF STATE TO REGULATE TRAFFIC. [§ 93 and sold and must therefore be deemed to be the subject of foreign and interstate commerce and that the law was unconstitu- tional as an obstruction to and interference with that commerce. 62 The act in question provided among other things that there should be a chief state commissioner by whom all liquors to be sold within the state should be purchased and that the local dispensers should obtain their supply of liquors from him. The law did not forbid the manufacture of such liquors within the state but rather recognized the right to manufacture them by providing that per- sons desiring to manufacture within the state should first obtain from the state board a license or permit to do so and that such manufacturers should be allowed to sell to no person in the state except the state commissioner and to parties outside the state and that such commissioner should purchase his supplies from the brewers and distillers within the state when their product reached the standard required by the act provided that such supplies could be bought from such brewers and distillers as cheaply as they could elsewhere. The act also provided that the state commis- sioner might enter into contracts with responsible grape-growers within the state for the sale of domestic wines through the dis- pensary so as to encourage grape growing within the state and that in furtherance of such provision not more than ten per cent profit to the dispensary over the expense of bottling, freight- ing etc., should be charged for the handling of such wines § 93. Dispensary laws — question as to creating monopoly. In North Carolina it has been decided that the dispensary system does not create a monopoly in the offensive sense of the term and is not unconstitutional on such ground. 63 And in a «2. Scott v. Donald, 165 U. S. 58, 63. Garsed v. Greensboro, 126 N. 17 Sup. Ct. 265, 41 L. Ed. 632, con- C. 150, 35 S. E. 254. Guy v. Cora- struing Dispensary Act of S. C. ap- missioners, 122 N. C. 471, 29 S. E. proved Jan. 2, 1805. 771. §§ 94 95, 96] POWER OF STATE TO REGULATE TRAFFIC. 117 case in South Carolina it is said that the doctrine of monopoly cannot be applied to a state in exercising its governmental func- tions. 04 And in Georgia it has been decided that a monopoly in such a business thus created by the legislature, by conferring the exclusive privilege of engaging in such a traffic upon a body corporate, is not violative of a constitutional provision prohibiting the passage of any law making irrevocable grants of special privilege or immunities. 65 § 94. Dispensary act — Power of mayor to enforce action under. Though a dispensary act imposes certain duties upon a judge of probate in connection with" the appointment of a dispenser under such act and also imposes upon the mayor and other ex- ecutive officers of a city the duty to certify the fact of vacancy in the office of dispenser to the judge of probate; yet this confers upon the mayor no right to enforce by mandamus the perform- ance by such judge of his duty, such duty being one owing to the municipality and not to the mayor as its officer. 66 § 95. Sales by dispensers after dispensary abolished. Where a dispensary for the sale of liquor has been abolished by a valid act of the general assembly, and the individuals who, under the act providing for its establishment, have been the dispensary commissioners, continue the sale of liquor, such sale is illegal. 67 § 96. Town and city agents to purchase and sell. Laws authorizing the appointment of town or city agents for the purchase and sale of intoxicating liquors was one of the earlier means devised for the control and regulation of the liquor traffic. So in some cases statutes have been passed pro- 04. State v. Aiken, 42 S. C. 222, 66. Rose v. Larapley. 146 Ala. 445. 20 S. E. 221, 20 L. R. A. 345. 41 So. 521. 66. Plumb v. Christie. 103 Ga. 686, 67. Dispensary Commissioners v. 30 S. E. 759, 42 L. R. A. 181. Hooper, 128 Ga. 99, 56 S. E. 997. 118 POWER OF STATE TO REGULATE TRAFFIC. [§97 bibiting tbe sale of intoxicating liquors except for certain pur- poses and authorizing the local authorities in a city or town to appoint an agent by whom such sales shall be made and requiring the giving of a bond by him. 68 As a general rule the constitution- ality of these statutes has not been the subject of much question. In an early case in Vermont, however, " an act to prevent traffic in intoxicating liquors for the purpose of drinking," was held to be unconstitutional, in so far as it authorized the agent, ap- pointed by the county commissioner, to purchase liquors at the expense of the town, for which he was appointed, without its assent either express or implied, or without giving indemnity to the town for the faithful execution of the duties of his agency. 69 § 97. Same subject — liabilities and rights of towns. Authority to a town to sell spirituous liquors for specified purposes implies an authority to purchase them and a sale to the selectmen of a town is held to be a sale to the town and the vendor may recover their value from the town. 70 So where cities and towns are directed by statute to appoint agents for the purchase and sale of spirituous and intoxicating liquors for specified pur- poses, the duly appointed agent or agents or the selectmen may, it has been decided, purchase upon the credit of the town the necessary liquors and the selectmen may bind the town by a note given for the price thereof. 71 But under a statute making it the duty of the selectmen of a town to appoint an agent or agents for the sale of intoxicating liquors for the purposes specified in the statute, it has been decided that the selectmen cannot act as agents or appoint one of their number to act as agent. 72 And 68. Commonwealth v. Pillsbury, 12 70. Kidder v. Knox, 48 Me. 551. Gray QTass.) 127; Dover v. Twora- 71. Great Falls Bank v. Farming- bly, 42 X. If. 59. ton, 41 X. H. 32. See also other cases cited in the 72. Richards v. Columbia, 55 N. H. three following sections. 96. Compare Rowe v. Edmonds, 3 69. Atkins v. Town of Randolph, Allen (Mass.) 334. 31 Vt. 226. § 98] POWER OF STATE TO REGULATE TRAFFH . 119 where the statute provides for the appointment of a state agenl to furnish liquor to towns and that after the appointment all purchases by town agents shall be from such persons, towns will not be liable for liquors purchased by their agents from others than the state agent subsequent to his appointment. 73 One who has been an agent of a town to purchase and sell intoxicating liquors is the agent of the town for that purpose and the liquors purchased by him in pursuance of that appointment belong to the town, to which he must account at the termination of his agency. 74 § 98. Same subject — power of agents. An agent to sell is not necessarily an agent to purchase and where in the appointment by the selectmen of a town of an agenl to sell intoxicating liquors the specific power to purchase is not given it has been decided that the selectmen are the proper agents to act for the towns in this respect. 75 And where by statute the selectmen are empowered to prescribe rules to be observed by the agent appointed by it, they may prescribe rules both in respect to the purchase and sale of the liquors, but such rules must not be so stringent as to defeat the purpose of the law. 76 And where sales by a town agent are only authorized under certain cir- cumstances and conditions, such circumstances must exist and the conditions be complied with in order to render the sale legal within the statute. 77 73. Lauten v. Allentown, 58 N. H. appointment " which shall be recorded 289. by the clerk of the city, town or place, 74. Inhabitants of Washington v. together with the rules prescribed for Eames. (i Allen (Mass.) 417. his observance, Buch certificate when Money received by the town duly recorded charges every one with liquor agent for liquors legally sold notice of the limitation upon his au- by him as sue): agent is presumed to thority prescribed therein. Backman be the money of the town. Leming- v. Charlestown, 42 X. 11. 125. ton v. Blodgett, 37 N't. 215. 70 - Backman v. Charlestown, 12 X. 75. Kidder v. Knox, 4S Me. 551. H. 125. As to notice of power.— Where 77. State v. Fisher, 35 Vt. 584. the statute provides thai such an Where sales to town agent agent shall receive a certificate of his must be for cash.— Where the stat- 120 POWEE OF STATE TO REGULATE TRAFFIC. [§ 90 § 99. Same subject — power of agent to delegate authority. The agent appointed by the selectmen of a no-license town to sell spirituous and intoxicating liquors for sacramental, medi- ute provides that sales made to the town by the state agent to agents " shall be made for cash " liquors so sold must be paid for on delivery, and it has been decided that a state agent cannot recover from a town the price of liquors which have not been so paid for it being declared that the author- ity of the town agent is limited to purchases for cash and that if the seller delivers the articles sold with- out such payment, he does so in his own wrong and cannot look to the principal. Mansfield v. Inhabitants of Stoneham, 15 Gray (Mass.) 149. As to making of application to agent. — In a prosecution against a town agent for a sale of liquor, where the law as to the making of an ap- plication has not been complied with evidence is not admissible to prove his general reputation for prudence and caution in the discharge of his duties as agent. State v. Fisher, 35 Vt. 584. Sale to a minor. — In Maine a sale by a town agent to a minor, without the written order of his parent or guardian was forbidden by the Act of 1853. State v. Fairfield, 37 Me. 517. Sale by agent for his own pro- fit.— The fact that one is the duly ap- pointed agent of a town to sell intoxi- cating liquors, furnishes no protection against prosecutions for selling liq- uor if the property in and the prof- its of selling it are his. The court said: "To allow the defendant un- der the circumstances of this case the protection which lie claims as ajrent. when the ease finds he was not in fact agent, but was the principal in all the sales made and alone in- terested in the profits, would be to re- peal the statute." State v. Put- nam, 38 Me. 296. Per Appleton, J. In an action by a town to re- cover the value of liquors sold by an agent whom it is claimed was appointed under a statute authorizing the selection of a town to appoint an agent to sell intoxicating liquors for mechanical and medicinal purposes it is essential to show that such person was in fact appointed as agent. Fox- croft v. Crooker, 40 Me. 308. Where the statute requires a town agent to keep a record con- taining the names of the persons to whom each sale is made and the kind, quantity and price of the liquor sold, a negligent omission to do so, even if not wilful or fraudulent is a violation of the statute. Inhabitants of Wen- ham v. Dodge, 98 Mass. 474. Bills of parcels as an account of purchases. — Bills of parcels bought by an agent of the town con- taining in substance the particulars required by the statute directing him to keep an account of all purchases by him are a sufficient compliance with the statute. Inhabitants of Wenham v. Dodge, 98 Mass. 474. As to time of settling accounts by town agents. — See State v. Brat- tleboro, 08 Vt. 520, 35 Atl. 472. Liability of agent in damages. —A town agent authorized by statute to sell liquors for certain specified purposes is not liable in damages to any person for refusing under any cir- cumstances to sell such liquor to any person. Dwinnels v. Parsons, 98 Mass. 470. Agent not an officer. — In Maine it has been decided that one who has g 99] POWER OF STATE TO REGULATE TRAFFIC. 121 cinal, chemical, and mechanical uses only, may delegate his au- thority to a sub-agent, who, in the absence of the former, may make such sales as the town agent himself could lawfully have made had he been present, it being declared that such delega- tion of authority is not forbidden by the statutes relating to the subject and is necessary to carry out the purposes therein con- templated. 78 been appointed as agent of a city to ment. State v. Weeks, 67 Me. 60. sell intoxicating liquors is not an 78. State v. Marley, 78 Conn. 330, officer of the city but that his posi- 62 Atl. 85. tion was in the nature of an employ- 122 PARTICULAR STATUTORY REGULATIONS. CHAPTER VI. PARTICULAR STATUTORY REGULATIONS. Section 100. Excluding liquor traffic from certain localities. 101. Designating saloon limits in cities and towns. 102. Consent of owners of dwelling houses. 103. Excluding traffic within certain distance of building or place. 104. Same subject — Colleges — schools — churches. 105. As to premises and use of. 10G. Same subject — as to entrances. 107. Same subject — confining business to single room. 108. Prohibiting sale in brothels. 109. Forbidding obstruction of view of interior of saloon. 110. Same subject — Massachusetts laws. 111. What obstructions are within the prohibition. 112. Prohibiting sales to certain classes of persons. 113. Prohibiting sales to minors. 114. Prohibiting sales to females. 115. Prohibiting employment of females. 116. Filing with official list of names of employees. 117. Closing of saloons on certain days. 118. Closing of saloons on Sunday. 119. Closing of saloons on Sundays — hotels. 120. Designation of hours for keeping closed. 121. Legislation as to quantity. • 122. Requiring seller to make returns or keep statement. 123. Committing sale to particular classes of persons. 124. As to sales by druggists. 125. Same subject — requiring of prescription. 12fi. Same subject — extent of right to sell. 127. Returns by druggists. 128. Requiring written application or request. 129. As to sale by social clubs. 130. Inspection of liquors. 131. As to adulteration of liquors. 132. Designation of cereals to be used in manufacture of malt liquors. 133. As to furnishing public record of internal revenue receipt. §100] PARTICULAR STATUTORY REGULATIONS. 123 Sec. 100. Excluding liquor traffic from certain localities. The legislature has the power to pass local prohibitory Laws forbidding the manufacture and sale of intoxicating liquors within certain designated localities. 1 And it is declared to be well settled that it is entirely within the police power to Limit the conduct of the liquor or other businesses coming within its regula- tory scope, or to exclude such businesses from specified districts. 2 So an act prohibiting the sale of malt or vinous liquors within two miles of the corporate limits of any municipality has been held to neither violate the constitutional provision that all laws shall be uniform in their operation nor that requiring that every act shall embrace but one subject and matters properly connected therewith. 3 And in Xorth Carolina it has been decided that it is constitutionally competent for the legislature to prohibit the sale within a specified locality of intoxicating liquors not the manufacture of the vendor, as such a provision is declared not to discriminate against citizens of other counties nor liquors manufactured elsewhere but to give to every person residing in or out of such county the right to sell and dispose of his own products. 4 And in the application of the doctrine that the legis- lature has power to regulate or prohibit the sale of intoxicating liquors, it has been decided that an act to prohibit the sale of 1. State v. Snow, 117 N. C. 774, An act prohibiting the selling of 23 S. E. 322. spirituous liquors in a certain city An order of the county court revok- or town or within a certain distance ing an order prohibiting the sale of thereof to be drunk, or which is liquors within a throe mile radius is drunk, in said boundary does not self executing, and is not suspended violate a constitutional provision that by an appeal therefrom without super- an act shall relate to but one sub- sedecus. Bordwell v. Slate, 77 Ark. ject and that shall be expressed in its 161, 01 S. W. 555. title as the act of drinking liquor s. Grumbach v. Lelande (Cal. S. is declared to be germane to sell- C. 1008), 08 Pac. 105S. Per Hen- ing it. Raubold v. Commonwealth, Shaw, J.' 21 Ky. Law Hop. 1125, 54 S. W. 3. State v. Shroeder, 51 Iowa 107. 17. 1 N. W. 431. Pleuler v. State, 11 *• State v. Joyner, 81 N. C. 534. Neb. 547. 124 PARTICULAR STATUTORY REGULATIONS. [§§101,102 such liquors in a certain county is not unconstitutional because it prohibits the sale of liquor by a druggist to a physician to be used by the latter for medical purposes. 5 But where there is a general local option law in force in a state it has been decided a law which is subsequently passed " to prohibit the sale of spirituous or intoxicating liquors " in a certain specified county in which such local option law is already in force, is in violation of a constitutional provision that " no special law shall be enacted in any case for which provision has been made by an existing general law." 6 § 101. Designating saloon limits in cities and towns. It is within the sound discretion of the legislature to prescribe limits in cities and towns within which saloons may be conducted and outside of which saloons may be prohibited and such legisla- tion encroaches upon no constitutional right of the individual, and is in no sense a prohibition law but is a bare regulation. 7 The fixing of saloon limits is a mere regulation of the liquor traffic and not in any sense a prohibition thereof, and such limits, as a regulation, are lawful and should be upheld." 8 § 102. Consent of owners of dwelling houses. It is competent for the legislature to provide that the consents of two-thirds of the owners of dwelling houses within a certain number of feet from the proposed saloon shall be obtained and to specify how the distance is to be measured. 9 And in this connec- tion it has been decided that that where the distance is to be meas- ured in a straight line from the nearest entrance to a dwelling •".. Griffin v. Commonwealth, 7 Ky. citing 40 Tex. Cr. 364, 81 S. W. 1207; Law Rep. 300. Garonzik v. State, 50 Tex. Cr. 533, C. Crabb v. State, 88 Ga. 584, 15 100 S. W. 374 as distinctly holding S. E. 455. to this effect. 7. Williams v. State, 52 Tex. Cr. »• McDougal v. Malaghan, 184 N. 371, 107 S. W. 1121. Y. 253, 77 N. E. 12. See chapter 8. Ex parte King, 52 Tex. Cr. R. XII herein on Licenses. 383. 107 S. W. 549. Per Ramsey, J., § 103] PARTICULAR STATUTORY RE<:i LATIONS. L25 house, the word " entrance " is to be construed as meaning a means of ingress accessible to anybody desiring to pass from the street or other point outside the dwelling into the latter. 10 § 103. Excluding traffic within certain distance of building or place. In many cases the legislature has been fit to prohibit the carry- ing on of the liquor traffic within a certain designated distance of institutions of learning, or buildings devoted to charitable, religious or similar purposes, or places of a certain character, such laws being passed for the purpose of protecting the public morals, health or safety. So a statute prohibiting the manufacture of spirituous liquors within a certain distance of a certain named orphans' home without the written permission of the superintend- ent of such home is a valid exercise by the legislature of its power to regulate this traffic. 11 And likewise a law prohibiting the sale of intoxicating liquors within a certain distance of a home for disabled volunteer soldiers was held not to violate a con- stitutional provision that " all laws, of a general nature, shall have a uniform operation throughout the state." 12 And a statute making it unlawful to establish or maintain a place in which in- toxicating liquors are sold, or kept for sale, within one mile of a specified soldiers' home, or to within the same distance, sell or give such liquor to a soldier, sailor or marine who is an inmate or employee of such home has been held to be constitutional. 13 10. McDougal v. Malaghan, 184 N. !»• Whitney v. Township Board, Y. 253, 77 N. E. 12. 71 Mich. 234, 39 N. W. 40. The 11. State v. Barringer, 110 N. C. court said: "The state has a night to 525, 14 S. E. 781, holding also that guard and protect its poor and un- the fact that a part of the inmates fortunates within and ahout the state were removed to another place while institutions in which they are cared the buildings connected with the home for and maintained, and has a right, and which had been destroyed were under the police power, to make such being reconstructed did not suspend reasonable regulations as are neces- the operation of the statute. sary to thai end. * * * No one will 12. Driggs v. State, 52 Ohio St. 37, question the right of the state to 38 N. E. 882. enact that liquor shall not be sold, 120 PARTICULAR STATUTORY REGULATIONS. [§ 104 Again the power of the legislature in this respect was recognized in an act which prohibited the sale of liquors within a mile of the grounds where an agricultural fair was held and during the week it was held, it being declared that such power was properly exercised for the encouragement of agricultural societies and pro- viding regulations for preserving order and promoting the com- fort of those assembled at their fairs. 14 And a statute prohibiting the sale of intoxicating liquor within two miles of a place where an agricultural fair is being held is not unconstitutional on the ground that it is not uniform in its operation as it applies with uniformity to every person engaged in selling such liquors within the prescribed distance of where such a fair is being held. 15 And again a statute forbidding the sale of such liquors within four miles of the factory of a certain named manufacturing company was held to be constitutional. 16 § 104. Same subject — Colleges — schools — churches. A statute prohibiting the sale or giving away of liquors within three miles of any academy, college or university within the state, is held to be constitutional. 17 And where the legislature passed an act prohibiting the selling or giving away of intoxicat- ing liquors within five miles of a certain public school building and made no exceptions in favor of the manufacturers of such liquors it was held that the statute applied to them also it being declared that there being no exception in the statute in their given away, or furnished to the in- tained." Per Morse, J. mates of the Soldiers' Home, or upon 14. State v. Stovall, 103 N. C. the premises belonging to the state. 416, 8 S. E. 900. And I have no doubt of the equal 15« Heck v. State, 44 Ohio St. 536, right of the state to forbid such sal- 9. N. E. 305. or furnishing of liquor upon ground 16. Barnes v. State, 49 Ala. 342. though it be private property, imme- 17. Boyd v. Bryant, 35 Ark. 69, 37 diately abutting or adjoining the land Am. Rep. 6, holding that such an act belonging to the Home, or within a is not a special law. See Viefhaus v. reasonable distance of it. * * * The State, 71 Ark. 419, 75 S. W. 585; limit of one mile is not an unreas- Wilson v. State, 35 Ark. 414. able one and the law must be sus- § !05] PARTICULAR STATUTORY REGULATION-. 127 favor the courts could not create one. 18 And an act prohibiting such sales within a specified distance of a church or school house is not void on the ground of want of uniformity in its operation because it discriminates between sales made in the country and those made in incorporated towns or cities. 19 Again a statute which prohibits the sale of intoxicating liquors within a radius of three miles of any church or schoolhouse is held to be constitu- tional though it may incidentally operate in one or more counties by reason of the number and location of the churches and school- houses within the same to prohibit for the time being any sale whatsoever of the liquors mentioned within the boundaries of such counties. 20 And it has been decided that a law prohibiting the sales of liquor within two miles of a particular church is valid, though a part of the territory so specified is within the limits of a town whose charter had prior to such enactment empowered it to license liquor selling. 21 But where a statute prohibited the sale of such liquors within a specified distance of a certain named church in a county and there were two churches by that name and nothing in the statute to indicate to which of the two it referred the act was held to be ambiguous and inoperative. 22 § 105. As to premises and use of. The power to regulate the intoxicating liquor traffic includes the power to determine upon what premises such liquor shall be sold and what other use shall be made of such premises. 23 And where a saloon keeper is prohibited by statute from conducting 18. Cotton v. State. 62 Ark. 585, 22. State v. Partlow, 01 N. C. 550, 37 S. W. 48. 49 Am. Rep. 652. lf>. But lor v. State. SO Ca. 821. 15 -•"•• People v. Warden of City S. E. 763; See State v. Frost, 103 Prison, 6 App Div. (N. Y.) 520, 39 Tenn. 684, 54 S. W. 986; compare N. Y. Supp. 582. Hatcher v. State. 80 Tenn. 368. An ad is constitutional which con- 20. Butler v. State, 89 Ga. 821, 15 fines a liquor dealer to one place of S. E. 763. business, and prohibits him from sell- 21. State v. Snow, 117 N. C. 774, tag in any other place without giv- 23 S. E. 322. tag notice and filing bond as pro- 128 PARTICULAR STATUTORY REGULATIONS. [§ 106 another business in connection with his saloon he will not be per- mitted to evade the statute by employing some one else to operate such business. 24 Again it has been held that the legislature may forbid the giving away of food to be eaten on premises where liquor is sold. 25 § 106. Same subject — as to entrances. The legislature may provide as to the number of entrances which a saloon may have. Thus it may provide that there shall be only one door for entrance to or exit from a saloon. 26 Under a statute limiting the entrances to only one it has been decided that a second entrance is prohibited though it is in fact used only by the pro- prietor and his employees. 27 It is also a violation of such a statute to have a cellar which has an entrance from the street for storing beer in connection with the barroom. 28 Again a door for entrance from and exit to a room or shed in which liquors are stored is held to be within the prohibiton of the statute, 29 as is also a second door opening into an office through which one could pass from the main room to the street otherwise than through the vided in such act. People v. Brown, 85 Mich. 110, 48 N. W. 158. 24. Mason v. State, 170 Ind. 195, 83 N. E. 613, holding that evidence that a saloon keeper had leased the ground floor of a building containing two rooms, and had applied for, and was granted a license to retail liq- uors in the front room, no license being granted for the conducting of any business in connection therewith, that he rented the rear room to his bar-tender for a pool and gambling room, that chips were sold bearing the saloon keeper's name and redeem- able at the bar — either in coin or trade, that he was active in the con- duct of the pool room and a partici- pant in the profits, sustains a convic- tion for unlawfully conducting an- other business in connection with his saloon. 25. People v. Warden of City Prison, 6 App. Div. (N. Y.) 520, 39 N. Y. Supp. 582. 26. State v. Donahue, 120 Iowa 154, 94 N. W. 503. See further as to distance of en- trance from dwelling houses, schools and churches, chap XII herein. 2T. State v. Gifford, 111 Iowa 648, 82 N. W. 1034. 28. Garrett v. Bishop, 113 Iowa 23, 84 N. W. 923. 29. State v. Bussamus, 108 Iowa 11, 78 N. W. 700. 30. Ritchie v. Zolesky, 98 Iowa 589, 67 N. W. 399. §§ 107,108] PARTICULAR STATUTORY REGULATIONS. 1l"J principal entrance, 39 or a rear entrance which may be though it is not in fact used. 31 § 107. Same subject — confining business to single room. It is likewise within the power of the legislature to direct that the business shall be carried on in a single room. Under such a statute a large room divided by a partition so as to make a small storeroom off the barroom in which articles are kept to be served for lunches to customers in the barroom is not a single room within its meaning. 32 And cutting off the bar of a saloon from a dance-hall in the rear by means of a partition which does not reach to the ceiling has been held not to prevent the dance-hall from being a part of the premises in which the busi- ness is conducted where it appears that drinks from the bar are served in the hall. 33 But a code provision that the selling or keep- ing for sale of intoxicating liquors shall be carried on in a single room, does not prohibit an opening into a refrigerator room which cannot be used either as an exit or a place for buying or drinking liquor. 34 § 108. Prohibiting sale in brothels. A statute which prohibits " the sale, exchange or giving away of intoxicating liquors in brothels " is within the power of the legis- lature to enact. Places of such a character are degrading to the morals and to prohibit the sale or giving away of liquors therein is clearly a measure which the state may enact and which tends to protect the public morals, if not the public safety. 35 31. State v. Roney, 133 Towa 41 G, 82. wherein it was declared that it 110 N. W. C>()4. was not intended by article 14 of the 32. Garrett v. Bishop, 113 Iowa 23. constitution of the United State* for- 84 N. W. 923. bidding the passage by a state of any 33. Cunningham v. Forchet. 23 Tex. law which shall abridge the privileges Civ. App. 80, 56 S. W. 574. or immunities of citizens of the 34. State V. Donahue. 120 Iowa United States to limit the power of 154 94 N. W. 503. the legislature in such a case as this 35. Schmeltz v. State, 8 Ohio C. C. "or to interfere in the slkrhest de !3Q PARTICULAR STATUTORY REGULATIONS. [§ 109 § 109. Forbidding obstruction of view of interior of saloon. It is competent for the legislature to provide that a person authorized to sell intoxicating liquors shall during the time when places for the sale of such liquors are required by law to be closed remove all screens, curtains, partitions or any obstacle which shall obstruct the public view of the bar or place in the room where the liquors are sold or kept for sale. Such an act is a proper exercise of the police power as tending to enforce the observance of the laws as to the hours when traffic shall not be carried on in such places by exposing the interior thereof to the view of the public and of the police officials so that non-compliance may be readily seen. 36 And such an act requiring the removal of screens neither violates the fourteenth amendment of the United States Constitution nor a provision of the state constitution securing " the persons, houses, papers and possessions of every person from unreasonable searches and seizures." 37 And an act pro- hibiting the obstruction by screens or otherwise of a bar where intoxicating liquors are sold applies not only to retailers but also to wholesale dealers who give away liquor by the glass to be drunk on the premises. 38 So an act providing that the room with the acknowledged and settled "An open house" which a li- right of the legislatures of the several quor dealer by his bond may be re- states to enact and enforce criminal quired to keep, is defined by a Texas laws in the nature of police regula- statute as " one in which no screen or tions, to prevent or restrain acts other device is used or placed, either which, in their judgment, would be inside or outside such place of busi- subversive of or injurious to the ness, for the purpose of or that will public health, morals or welfare, for obstruct the view through the open in-tance the unrestricted traffic in door or place of entrance into any such intoxicating liquors, gunpowder, dyna- house or place where intoxicating liq- mite and like substances." Per quors are sold in quantities of less S, T1 ith, J. than a quart." State v. Andrews, 82 36. State v. Donahue, 120 Iowa Tex. 73, 18 S. W. 554; 2 Sayles Civ. 154, 94 N. W. 50.3; People v. Ken- Stats, art. 3226a. § 4. nedy, 105 Mich. 75. 62 N. W. 1020; 37. Robison v. Haug, 71 Mich. 38, Robison v. Eaug, 71 Mich. 38, 38 N. 38 N. W. 668. W. 668 ; State v. Doyle, 15 R. I. 38. Ritchie v. Zolesky, 98 Iowa 589, 325, 4 Atl. 764; State v. Andrews, 82 67 N. W. 399. Tex. 73, 18 S. W. 554. § 11. State v. Doyle, 15 R. I. 325, 4 Atl. 704. ii. The Massachusetts statute of 1880. c. 239, S 2. as amended by the St. of 1881, ch. 225. provided that "no sin h licensed person shall place or maintain, or authorize or permit to be placed or maintained upon any premises used by him for the sale of spirituous or intoxicating liquors un- der the provisions of his license, any screen, blind, shutter, curtain, parti- tion, or painted, ground or stained glass window, or any other obstruc- tion, which sua 11 interfere with a view of the business conducted upon the premises." St. of 1880, c. 23!), § G provided the penalty for violating the act. The statute was construed as not making the license subject to the condition that the person licensed should not do the prohibited act- hut as providing that any licensed person doing the acts should he subject to the penalty. A substantive oiTense was thereby created. Commonwealth v. Costello, 133 Mass. 192. By the statute of 1882, eh. 259, S 1. the words " interfere with a view of the busi- ness conducted upon the premises" wire followed by the word- "or with a view of the interior of said prem- ises," and it was declared that what- ever mighl have been the construction of the statute previously the words added precluded the construction that 132 PARTICULAR STATUTORY REGULATIONS. [§ HI and curtains is not operative merely during the hours in which the licensee is authorized by law to carry on his business. The object of the statute is to expose violations of the law. So it can- not be set up in defense to a violation of the prohibition that such obstructions were used on a Sunday, when the licensee was pro- hibited from keeping his place open and that as he was not licensed to sell on that day, although he was selling liquor, he was not acting as licensee, and that the prohibitions is limited to an act done by the licensee while carrying on the business under his license. Such a construction would defeat the intent of the statute. 42 § 111. What obstructions are within the prohibition. Where a statute forbids any obstruction so as to prevent the entire view of the room in which liquors are sold, the obstruction of any material part of the room is a violation of the act. 43 And that a bar is in the same room as the hotel office does not take it out of the operation of a statute requiring that all obstructions to the view from the street shall be removed during the times at which the law requires places kept for the sale of liquor to be closed. 44 So a curtain which interferes with a view of any part the application of the statute was limited to times when business was being carried on. Commonwealth v. Casey, 134 Mass. 194. The words " no license " in a stat- ute prohibiting the obstruction of a view of the interior of a saloon refer to every licensee and not merely to one who has been required by the li censing board to remove a screen curtain or other obstruction. Com monwealth v. Rourk, 141 Mass. 321 6 X. E. 383: See Commonwealth v Brothers, 158 Mass. 200, 33 N. E 380. 42. Commonwealth v. Auberton 133 Mass. 404: See also Common wealth v. Casey, 134 Mass. 194. 43. Nelson v. State, 17 Ind. App. 403, 46 N. E. 941. 44. People v. Carrel, 118 Mich. 79, 76 N. W. 118. The court said: "The language of the statute is plain, sim- ple and unambiguous. It does not make an exception in favor of a bar- room which is also used as an hotel office." Per Moore, J. A statute requiring the removal of all curtain, screens, partitions and other things which obstruct the view of the bar from the street shall be removed during the hours such places must be closed is violated where a hotel barroom is located back of the office and cloak room, so that irre- spective of any curtains or movable § 111] PARTICULAR STATUTORY I: EMULATIONS. 1.;:; of the room is within the prohibition of a statute which prohibits the placing of any obstruction " in such a way as to interfere with a view of the business conducted upon the premises " which statute has been amended by the addition of the words " or with a view of the interior of said premises." 45 And where curtains are so placed as to obstruct a view of the interior of a saloon it is immaterial for what purpose they are maintained. 40 Again under such a statute it has been decided that the fact that the windows opened upon private grounds does not render it incompetent to prove that the view through the windows or through one of them was obstructed. 47 In Xew York, however, it has been decided that under the statute of that state the fact that there are blinds on the premises, or that there are panes of opaque glass, does not constitute a violation of the act provided outsiders may have a full view of the inside of the premises. 48 In another case where it appeared that the front room was used as a cigar store and the rear for the sale of liquors the entrance to which was by a door from the front room, curtains or screens covering the windows of the front room and cutting off the view of the usual entrance to partitions the bar can not be seen from the street. People v. White, 127 Mich. 428, 86 X. W. 092, holding this to be true notwithstanding that the bar was maintained in the same place when the proprietor's tax was accepted and his bond approved. 45. Commonwealth v. Worcester, 141 Mass. 58, 6 X. E. 700. 4C. Commonwealth v. Moore, 145 Mass. 244. 13 X. E. 893. 47. Commonwealth v. Brothers, 158 Mass. 200, 33 N. E. 380. citing Commonwealth v. McDonough, 150 Mass. 504, 23 N. E. 112. 48. Matter of Plass, 71 App. Div. (X. Y.) 488, 70 N. Y. Supp. 2, so deciding in construing Laws of 1R9G, eh. 112, § 31, subd. h, as amended by Laws of 1897, ch. 312, providing that it shall be unlawful to " have during the hours when the sale of liquor is forbidden any screen or blinds, or any curtain or article or thing covering any part of any window, or to have in any window or door any opaque or colored glass that obstructs, or in any way prevents a person passing from having a full view from side- walk, alley or road in front of, or from the side, or end of the building, of the bar and room, or any part of such l>.ir and room, in such building where liquors are sold or kept for sale." See also Matter of Henry. 5G App. Div. (N. Y.) 2G8, 67 N. Y. Supp. 733. 134 PARTICULAR STATUTORY REGULATIONS. [§112 the barroom were held to be within the meaning of the statute. 49 And the maintaining by one upon his premises of a painted glass window which interferes with- a view of the interior of the prem- ises or of the business conducted upon such premises is within the prohibition of the statute. 50 § 112. Prohibiting sales to certain classes of persons. The power of the state to regulate and control the liquor traffic includes the right to prohibit the sale of intoxicating liquor to certain classes of persons. 51 So the state may provide that liquor shall not be sold to certain relatives of one who has given notice to the dealer requesting that he shall not furnish liquor to such persons. 52 And a statute which prohibits the sale of liquor to students of institutions of learning does not deprive citizens of their equal rights, liberty, property, privileges and immunities or deny to persons within the state the equal protection of the laws in violation of provisions in either the state or United States constitutions forbidding the passage of laws which so operate. 53 It is also held to be a valid exercise of the police power vested in the state to prohibit the sale of intoxicating liquors to any Indian without regard to the question whether he has or has not severed 49. Commonwealth v. Kane, 143 the license was thereby avoided, al- Mass. 92, 8 N. E. 880. though the obstruction existed when Where a man was licensed to sell the license was granted, intoxicating liquors " in the front 51. Lodano v. State, 25 Ala. 64 ; room and rear room" of a certain Harlan v. Richmond, 108 Iowa 161, floor of a building and was not re- 78 N. W. 809; Kurtz v. People, 33 quired by the licensing board to re- Mich. 279. Sanders v. State, 34 Neb. move the partition between the two 872, 877, 52 N. W. 721; See City rooms it was held that the partition Council v. Van Roven, 2 McC. L. (S. was not within the provision of the C.) 465, construing an ordinance for- satute although it might obstruct the bidding retailers of liquor from sell- view of the interior of one or the ing to persons of color, other of such rooms from the public 52. Bankhart v. Freeborn, 42 Ohio street. Commonwealth v. Barnes, 140 St. 52. Mass. 447, 5 N. E. 252. 53. Peacock v. Limburger. (Tex. 50. Commonwealth v. Sawtelle, 150 Civ. App. 1902), 67 S. W. 518. Mass. 320, 23 N. E. 54, holding that § 113] PARTICULAR STATUTORY REGULATIONS. 135 his tribal relations, adopted the habits of civilization and become a citizen of the United States. 54 Again it has been declared that a statute forbidding tho furnishing of liquor " by sale, gift or otherwise " on a Sunday to a person visibly affected by intoxi- cating drink is a law which is properly within the range of a wise exercise of the police power which ought to be faithfully enforced and applied equally to a licensed dealer or to one not licensed who gives such liquor away. 55 And in Louisiana it has been decided that a statute is constitutional which prohibits the sale of liquor to white and colored persons in the same building. 56 § 113. Prohibiting sales to minors. The state may make a penal offense to knowingly sell or give intoxicating liquors to a minor. 57 And it is decided that where a statute prohibits sales to a minor " either for his own use, the use of his parent, or of any other person," a seller of such liquors is bound at his peril to keep within the condition of his license that no such sale shall be made to a minor; as the fact that one to whom liquor was sold had the appearance of being of full age, or stated to the seller that he was and that the sale to such person was made in good faith in tho honest belief that he was an adult 54. State v. Wise, 70 Minn. 99, sales to intoxicated persons; Hedges 72 N. VV. 843, holding that such an v. Titus, 47 Ind. 145, where statute act is neither arbitrary class legis- forhid sales to persons in habit of lation nor does it abridge the privi- becoming intoxicated. leges or immunities of citizens of the 56. State v. Falkenheiner, 123 La. United States, or deprive any person , 49 So. 214. of liberty or property without due 57. Commonwealth v. Tabor, 138 process of law within the meaning Mass. 490; Altenlmrg v. Common- of the fourteenth amendment of the wealth, 126 Pa. St. 602, 17 Atl. 799, federal constitution. It was said: 4 L. R. A. 543; Goldsticker v. Ford, "The difference in condition between 02 Tex. 385. See State v. Austin, Indians as a race and the white race 114 N. C. 855. 19 S. E. 910, 41 L. constituted a sufficienl basis of 7 Pa. Super. Ct. 438; State 55. Altenburgh v. Commonwealth, v. Reynolds, 14 Mont. 383, 30 Pac. 126 Pa. St. 002, 17 Atl. 79!). 4 L. R. A. 4 1<>. 543. See Commonwealth v. Tabor, What constitutes sale to a 138 Mass. 490, where statute forhid minor.— Where a minor child at the 136 PARTICULAR STATUTORY REGULATIONS. [§ 113 is immaterial. 58 So the sale of liquor to a minor being illegal whether made to him as principal or as an agent, evidence that the request of her brother-in-law, obtains a pail of beer, pays for it with a ticket which he gives her for that purpose and carries and delivers it to him it has been held in New York that there is not a sale within the meaning of the Penal Code. People v. Hartstein, 49 Misc. R. (N. Y.) 336, 99 N. Y. Supp. 272. 58. Commonwealth v. Gould, 158 Mass. 499, 33 N. E. 656; Common- wealth v. Joslin, 158 Mass. 482, 33 N. E. 653, 21 L. R. A. 449n. O'Flinn v. State, 66 Miss. 7, 5 So. 390; But see Thomasson v. State, 15 Ind. 449, holding that where the sale to minors is prohibited by statute it has been decided in a prosecution for violation of the act that the defendant may show reasonable ground of belief that the minor was an adult. Intention to violate is imma- terial. — In People v. Werner, 174 N. Y. 132, 66 N. E. 667 rev'g 52 App. Div. 635, 66 N. Y. Supp. 1139, it is decided that the belief of a seller of liquor that the one to whom he sold it was not a minor is no defense to an indictment for a violation of the statute as to sales to minors. The court said: "The defendant kept a hotel or tavern and was authorized to traffic in liquor. He was convicted of a violation of the act in that he sold and delivered liquor to a minor under the age of eighteen years, con- trary to the provisions of section thirty of the statute. The jury would have been justified in finding that the defendant acted in good faith, supposing from what the boy and his father had told him that he was over eighteen years of age, but the ab- sence of any criminal intent and the circumstance that the defendant acted in good faith would seem to be in- material. The law on that subject seem to be that an act malun pro- hibitum is not excused by ignorance, or a mistake of fact when a specific act is made by law indictable irrespec- tive of the defendant's motive or in- tent. This belief that he was right in what he did based on a mistake of fact is no defense. Wharton Cr. Law, 9th ed. sec. 1507. People v. Kibler, 106 N. Y. 321, 12 N. E. 795; Morris v. People, 3 Denio 381, Gard- ner v. People, 62 N. Y. 299. The gen- eral rule that the criminal intention is the essence of the crime does not apply to such prohibited acts; but while that is so, such statute ought to be strictly construed and the peo- ple required to give strict proof of the commission of the offense." Per O'Brien, J. Evidence by defendant to im- peach testimony as to boy's age. —In People v. Werner, 174 N. Y. 132, 66 N. E. 667, rev'g 52 App. Div. 635, 66 N. Y. Supp. 1139, it is de- cided that where the only evidence to support the indictment so far as it was based upon the boy's age, is the testimony of his father, the defend- ant may for the purpose of contra- dicting or impeaching him, show on his cross-examination and by the tes- timony of other witnesses that he had stated to him that his son was over eighteen years of age, and the ex- clusion of such testimony is reversible error. In Pennsylvania it has been decided that section 17 of the Act of May 13, 1887, P. L. 108 which makes it un- lawful by sale, gift or otherwise to furnish any spirituous, vinous, malt or brewed liquors to a minor was not repealed nor was the burden of prov- ing that the defendant knew, or was § 114] PARTICULAR STATUTORY REGULATIONS. 137 purchase was for his mother who was sick is immaterial and rightly excluded. 59 § 114. Prohibiting sales to females. In the exercise of the power existing in the state to control the sale of liquor it has been determined that the legislature may prohibit the sale of intoxicating liquors to females. 60 And an act prohibiting sales of such liquors to women does not deprive the seller of his property or liberty without due process of law in violation of either the provision in the Federal constitution or in a state constitution to that effect. 01 And a statute making it an offense for proprietors of places where liquor is kept for sale at retail, to permit a female under the age of twenty-one years to remain in or about the place is not special legislation because it excepts from its operation any open and public restaurant or dining-room, as this is a classification that the state in the exer- cise of its police powers can lawfully make. 62 Nor is such a stat- ute invalid because of the fact that a female attains her majority at the age of eighteen as the right to enter and remain in a saloon is not one of the equal privileges granted to every citizezn. 63 jSTor is such a statute void as unreasonable, because making no distinc- tion dependent on the purpose of the visit. 64 And though a statute may be construed as conferring upon women the right equally with men to frequent saloons yet such right will be regarded as taken away by the act of the legislature in subsequently granting negligent in not ascertaining, that Colo. 488, 69 Pac. 500, 63 L. P. A. the persons to whom he sold or furn- 61. See State v. Reynolds, 14 Mont. ished liquors were minors cast upon 383, 36 Pac. 440. the petitioner by the Act of May 25, 61. Cronin v. Adams, 192 U. S. 108, 1897, P. L. 93. Johnston's License, 24 Sup. Ct. 219. 48 L. Ed. 365. 37 Pa. Super. Ct. 438. 62. State v. Baker, 50 Oreg. 381, 5J>. Commonwealth v. Gould, 158 92 Pac. 1070. Mass. 499, 33 N. E. 656. 63. State v. Baker, 50 Oreg. 381, 60. Cronin v. Adams, 192 U. S. 108, 92 Pac. 1076. 24 Sup. Ct. 219, 48 L. Ed. 365 aff'g 64. State v. Baker, 50 Oreg. 381, judgment in Adams v. Cronin, 29 92 Pac. 1076. 138 PARTICULAR STATUTORY REGULATIONS. [§ H5 a charter to a city by which authority is conferred upon it to de- prive women of such right. 65 In this connection it is decided that a room used by saloon keepers in connection with their saloon business is part of the saloon within a statute making it an offense to permit a female under the age of twenty-one to remain in or about a saloon. 06 In Colorado it is decided that to make a room a wine room within the provisions of the statute prohibiting the keeping of a wine room into which females are permitted to enter and be supplied with liquor it must be kept in connection with or as a part of the saloon it being declared that the legislature evidently intended to designate a place which patrons might use for private tippling purposes instead of drinking at the bar and in which a portion of the business of the saloon should be carried on. 67 § 115. Prohibiting employment of females. It is a valid exercise of the police power by the legislature to either forbid the sale of intoxicating liquors in a place where females or minors are employed or to prohibit the granting of a license for such a place, as an enactment of this nature is obvi- ously for the benefit and protection of public morals. 68 So the legislature, or a municipality with the requisite authority to so act, may provide that persons engaged in the sale of intoxicating liquors shall not employ the services of women in connection 65. Adams v. Cronin, 29 Colo. 488, the room charged to he a wine room 69 Pae. 590, 63 L. R. A. 61. was a resturant; that there was a 66. State v. Baker, 50 Oreg. 381, 92 range in the back of the room for Pae. 1076. the purpose of cooking, and that ed- 67. Ellis v. People, 38 Colo. 516, ibles were displayed; and that the 88 Pae. 461, citing Walker v. People, place was resorted to for the princi- 5 Colo. App. 40, 37 Pae. 29, and hold- pal purpose of food rather than drink, ing that on the trial of a saloon 68. Cronin v. Adams, 192 U. S. keeper for keeping a wine room in 108, 24 Sup. Ct. 219, 48 L. Ed. 3C5. connection with a saloon it was re- State v. Reynolds, 14 Mont. 383, 36 versible error on the part of the trial Pae. 449, sustaining a statute so pro- court to refuse evidence offered by viding as to the employment of wo- the defendant tending to show that men or minors. §8 ll6 f 117] PARTICULAR STATUTORY REGULATIONS. 139 therewith; such a regulation not being a denial to women of the equal protection of the laws assured by said amendment. 69 And a constitutional provison that " no person shall on account of sex be disqualified from entering upon or pursuing any lawful busi- ness, vocation or profession" is not a limitation upon the power of the state to regulate the retail trade in intoxicating liquors and therefore a statute or an ordinance, where a municipality has the authority to act, prohibiting the sale of such liquors in any place where females are permitted to wait or attend in any man- ner on any person is a valid regulation. 70 § 116. Filing with official list of names of employees. The legislature may by statute provide that all sellers of intoxi- cating liquors shall file with a designated official a list of names of all persons employed about the place of business. Such a pro- vision has been construed as extending not only to the regular bar keepers but to any person employed about such place for any purpose. 71 The court said in this case: " The object of the statute evidently is to prevent the employment of persons about the place and especially behind the bar, who may be in a situation to handle liquor, whether they do so with or without authority. In other words the authority which may be given to such employee by the person conducting the place is not the test for determining whether their names should be listed with the county auditor." '-' § 117. Closing of saloons on certain days. A frequent regulation by statute of the liquor traffic is a pro- 60. Hoboken v. Goodman, 68 N. J. hours and wash up the bottles and L. 217, 51 Atl. 1092. glasses back of the bar, that these 70. Ex parte Hayes, 98 Cal. 555, persons 'lid L r <> behind the bar in this 33 Pac. 337, 20 L. R. A. 701. employment and that their names 71. Pumphrey v. Anderson, flown were not listed with the county audi- 1909), 119 N. W. 617. It appeared tor, hut that these persons were not in this case that the seller employed authorized <<» and did not sell or porters and other workmen tempo- handle liquor behind the bar or other- rarily, from time to time, to clean up wise. his place of business during busii "-• Per McClain, .T. 140 PARTICULAR STATUTORY REGULATIONS. [§ 117 vision naming certain days upon which saloons are required to be closed; such a statute being a proper exercise by the state of its police power for the protection of the public morals or safety. Thus in many states it has been deemed advisable to require the closing of saloons on election days or during certain specified hours on such days, such a measure being considered advisable as tending to preserve peace and order at the polls and for the public safety. 73 In this connection it has been decided that the words " election day " as used in a statute prohibiting the sale of intoxi- cating liquor on such days, means a whole day of twenty-four hours. 74 Again in some states statutes have been passed provid- ing that saloons shall be closed on legal holidays. 75 So where " labor day " is by statute made a legal holiday and by another 73. State v. Hirsch, 125 Ind. 207, 24 X. E. 1062, 9 L. R. A. 170. Qualter v. State, 120 Ind. 92, 22 N. E. 100. Commonwealth v. Murphy, 95 Ky. 38, 23 S. W. 655; Sanders v. State, 34 Neb. 872, 52 N. W. 721. " That drinking intoxicating liq- uors tends to inflame to riot and acts of violence men who are congregated under the excitement of an election is an obvious reason for endeavoring to suppress drinking, and for prohib- iting sales for immediate consump- tion, and for closing places of sale for immediate consumption, on an election day." State v. Orth, 38 Minn. 150, 36 N. W. 103. Per Gil- fillan, C. J. 74. Schuck v. State, 50 Ohio St. 493, 34 N. E. 663; Kane v. Common- wealth, 89 Pa. St. 522; Jones v. State, 32 Tex. Cr. 533, 25 S. W. 124 ; Lawrence v. State, 7 Tex. App. 192; Haines v. State, 7 Tex. App. 1. Com- pare Wooster v. State, 6 Baxt. (Tenn.) 533. 75. State v. Shelton, 38 Ind. App. 80, 77 N. E. 1052; Commonwealth v. Francis, 152 Mass. 508, 25 N. E. 836; Moore v. Kelley, 136 Mich. 139, 98 N. W. 989. The word " holiday " means a consecrated day; a day of cessation from ordinary labor. State v. Shel- ton, 38 Ind. App. 80, 77 N. E. 1052. Christmas has been held to be a legal holiday in Michigan within the meaning of an act directing that sa- loons shall be closed on legal holidays, Sunday and election days. Reithmil- ler v. People, 44 Mich. 280. Holidays for commercial pa- per. — In Indiana it has been decided that a day which is simply a legal holiday under the statute in relation to commercial paper is not within the meaning of the intoxicating liquor statute. State v. Atkinson, 139 Ind. 426, 39 N. E. 51, holding the 30th of May not to be a legal holiday. See also State v. Shelton, 38 Ind. App. 80, 77 N. E. 1052; Compare as to principle, People v. Ackerman, 80 Mich. 588, 45 N. W. 367. And the 4th of July has been held not to be a legal holiday within the meaning of such a statute. Ruge V. State, 62 Ind. 388. § 118 ] PARTICULAR STATUTORY REGULATIONS. 141 statute the sale of intoxicating liquors on any legal holiday is prohibited, the sale of liquors on labor day comes within the pro- hibition of the statute. 76 So in Michigan under a statute desig- nating certain days and declaring that such days and " any other day appointed or recommended by the governor of this state or the President of the Onited States as a day of fasting and prayer or thanksgiving " shall as to commercial paper and the holding of courts be considered as the first day of the week commonly called Sunday it was held that the 30th day of April known as Centennial Day and set apart by the governor as a day of thanks- giving and prayer was a legal holiday, and that a sale of liquor on such day was prohibited. 77 And where the general law re- quired all saloons to be kept closed on all legal holidays it was decided a subsequent act authorizing the common council of a certain city to enact ordinances " to restrain, license and regulate saloons, and to regulate and prescribe the location thereof " was to be construed as not abrogating the general law but as author- izing the city to regulate saloons in a manner not inconsistent therewith and that an ordinance permitting saloons to remain open an July 4th was invalid. 78 § 118. Closing of saloons on Sunday. A statute directing that all saloons and other places where the liquor traffic is carried on shall be closed during certain hours on Sunday or during the entire day is a proper exercise of the police power. 79 And it is said to be settled law that it is within the legitimate exercise of the police power for the legislature to pro- 70. State r. Shelton, 38 Ind. App. Kentucky. — Commonwealth v. Mc- 80, 77 N. E. 1052. Cann, 123 Ky. .247. 04 S. W. 645. 77. People v. Ackerman, SO Mich. Missouri. — State v. Ambs, 20 Mo. 588, 45 N. W. 367. 214. 78. Moore v. Kelley, 136 Mich. 139, Nebraska. — Sanders v. State, 34 98 N. \Y. 989. Neb. S72. 52 X. W. 721. 70. Flnrdia. — Crabb v. State, 47 Pennsylvania. — Sifted v. Common- Fla. 24, 30 So. 169. wealth, 104 Pa. St. 170. Indiana. — Morris v. State. 47 Tnd. Tennessee. — State v. Barker, 4 503; Parker v. State. 27 I ml. 393. Sneed (Term.) 554. 142 PARTICULAR STATUTORY REGULATIONS. [§118 hibit the sale of vinous, spirituous or malt liquors on Sunday and keeping open places where such liquors are sold and that whether the business is engaged in as a livelihood or for profit, or whether sales are made public or private, or not at all, is of no consequence if the places are kept open for such sales. 80 So it is held that a druggist who not only sells liquors upon the prescription of phys- icians but also has a retail liquor dealer's license and retails liquors and his drugs and liquors are kept in the same room so that the drug room cannot be kept open without keeping the barroom open must close his place on Sunday where the statute prohibits the keeping open on Sunday of any place where intoxicating liquors are sold. 81 A statute however providing that it shall be unlawful for any maker, brewer, or distiller of beer or other intoxicating liquors " or other person or corporation or the agent or servant of any such maker, brewer or distiller " to sell or deliver any beer or other intoxicating liquors on Sunday is held not to operate as a general prohibition against all persons but only against makers, brewers, distillers and others of that class and not to apply to duly licensed hotels having a barroom license under a previously enacted general law or to repeal an act allowing hotels to sell liquors to bona fide guests at their meals or in their rooms. 82 The term " closed " as used in a offense. Thus is one is arrested on statute providing that all saloons and Sunday morning for keeping his bar- all places of public resort where in- room open and after giving bail, he toxicating liquors are sold, shall be returns and opens it again on the closed on Sundays means that the same day he will be regarded as sales shall be entirely stopped and having committed two offenses for the traffic shut out effectually, so that each of which he may be arrested and drinking and the conveniences for tried. Commonwealth v. Mc Cann, drinking, shall be no longer accessible, 123 Ky. 247, 94 S. W. 645. ! 1 that those who frequent the so - Beau voir Club v. State, 148 places for that purpose shall be dis- Ala. 643, 42 So. 1040. Per Denson, persfd. Kurtz v. People, 33 Mich. J. 279. «i. McNeill v. State, 92 Tenn. 719, Keeping open not a continnons 23 S. W. 52. offense. — The keeping of a barroom s 2. District of Columbia v. Reuter, open on Sunday in violation of stat- 15 App. D. C. 237. ute is not necessarily a continuous §§ 119 1201 PARTICULAR STATUTORY REG! LATIONS. 143 § 119. Closing of saloons on Sundays — hotels. In New York it is decided that a Btatute prokibiting any tavern or hotel keeper from selling or giving away intoxicating liquors as a beverage does not prohibil Mich a person from providing such liquors to guests to be taken with their meals. 88 But the pro- visions of a liquor tax law authorizing the keeper of a hotel to sell liquor to his guests with their meals are violated by him when he on Sunday sells casual callers at the hotel whisky to be drunk there, and only incidentally has sandwiches served with the drinks. 84 And though a hotel keeper may under the license granted to him serve liquors to his guests on Sunday yet this right to so serve them may be taken away by a subsequent statute and it is said that when a legislative enactment is declared by the supreme authority of the state to limit the liquor traffic, under a license, to the six secular days of the week, those citizens to whom the law has intrusted licenses for public reasons, ought to yield a cheerful obedience. 85 § 120. Designation of hours for keeping closed. The legislature may also in the exercise of the police power fix the hour at which a saloon shall close its doors each night and 83. Matter of Breslin, 45 Hun liquor the secondary thing. Regard- (N. Y.) 210. ing the callers as guests and the sand- 84. Matter of Cullinan, 41 Misc. R. wich as a meal for the purpose of (N. Y.) 3, 83 N. Y. Supp. 581. The this discussion only, the occurrence COUii said: "The serving of the sand- was nothing less than the selling of wichea was a mere subterfuge. It meals to the guests with their liquor, was incidental to the sale of whisky. a palpable evasion of the letter and The men ordered whisky and said spirit of the law and a practical nothing in the first instance about a transposition of its express terms to meal or even a sandwich. The latter accomplish such evasion, the sale of was urged upon them by the waiter liquor being thus made the primary after consultation with the respond- thing and the sale of the sandwich ent. The section above cited (subd. being secondary and incidental k), provides that 'the keeper of a thereto." Per (Jarretson. J. hotel may sell liquor to the guests sr '- Commonwealth v. Naylor, 34 of such hotel * * * with their meals. Pa. St. 86, 88. the meal being the primary and the 144 PARTICULAR STATUTORY REGULATIONS. [§ 121 at which it may reopen them in the morning and forbid the sale of liquor between such hours. 86 So a statute prohibiting the sale of intoxicating liquors between the hours of eleven at night and five the next morning has been held to be constitutional and to apply to licensed retailers of such liquors. 87 And it is within the power of the legislature to require a saloon keeper to securely close his saloon and permit no one to enter during the time when the sale of liquors is forbidden. 88 And one who sells intoxicating liquors under authority of a license from the United States is sub- ject to the provisions of a state statute providing that during the hours a saloon is required to keep closed the room shall be so arranged as to afford a view of the interior from the street or highway. 89 § 121. Legislation as to quantity. The state in the exercise of its power to control and regulate the liquor traffic, may pass statutes in regard to the quantity in which liquor may be sold, prohibiting its sales in less than a cer- tain quantity or making the license fee different where liquor is sold at retail in less than a certain quantity to be drank upon the premises than it is where it is sold in excess of that quantity and not to be drank upon the premises. 90 The legislature may also 86. State v. Hellwan, 56 Conn. 190, State v. Benz, 41 Minn. 30, 42 N. W. 14 Atl. 806; Commonwealth v. Kelley, 547. 177 Mass. 221, 58 X. E. 691. New Jersey. — Fagan v. State, 47 87. Hedderich v. State, 101 Ind. X. J. L. 175. 564, 51 Am. Rep. 768. New York.— People v. Vosburgh, 76 88. State v. Gerhardt, 145 Ind. 439, Hun. 562, 28 N. Y. Supp. 208 ; People 44 X. E. 469, 33 L. R. A. 313. v. Quant, 12 How. Pr. 83. 8». State v. Mathis, 18 Ind. App. Pennsylvania. — Commonwealth V. 608, 48 X. E. 645. Watson, 2 Pa. Dist. R. 526. '■><>• Alabama. — Lodano v. State, 25 South Carolina. — State v. Turner, Ala. 04. 18 S. C. 103. Illinois. — Tipton v. State, 156 111. Tennessee.— Philips v. State, 2 241. 4u \. K. 838. Yerg. 458. Maine. — State v. Davis, 23 Me. 403. In Kentucky it has been decided Minnesota. — State v. Brackett, 41 that under the police power to pro- Minn. 33, 42 X. W. 548; following hibit the sale of liquor by retail the § 121] PARTICULAR STATUTORY REGULATIONS. ] J.", prohibit the sale of liquor in any quantity whatever to be drank upon the premises. 91 And in " an act to regulate the sale " of intoxicating liquors the legislature may forbid the sale of such liquors by the small measure, as such a provision is in the nature of a regulation and not prohibition and does not violate a constitu- tional provision that every law shall embrace but one subject and that that subject shall be expressed in the title. 92 So foreign liquor after it has passed beyond the hands of the importer, or the original package is broken for use or sale, so that it ceases to be foreign commerce, is not exempted from the operation of a statute prohibiting the sale of intoxicating liquors in less than a certain quantity by the fact that the statute provides that it shall legislature may, in its wisdom, fix ten gallons as the minimum quantity that can be lawfully sold at one time. Stickrod v. Commonwealth, 86 Ky. 285, 5 S. W. 580. The court said: " Under the police power to prohibit the sale by retail it seems to us the legislature may, in its wisdom, fix ten gallons as the minimum quantity that can be lawfully sold at one time, and the courts cannot call in question such exercise of power, for with the policy or expediency of such legisla- tion they have nothing to do. The theory of prohibitory liquor laws is, that by the purchase as well as sale of liquor by retail, in the language of the preamble to an act of the legis- lature passed in 1S20. ' industry is checked, purses are drained, consti- tutions are destroyed, families are distressed, and the people are de- moralized. ' It cannot, therefore, be said that a question of privil arises when a statute is passed hav- ing for its object the prevention of such calamitous consequences." Per Lewis, J. In Texas it has been declared that the laws in force there have recog- nized a bond and license to sell in- toxicating liquors in quantities less than a quart as authorization to per- mit the liquors to be drank upon the premises where sold and that the pro- hibition against permitting them to be drunk where sold applied only to sales of a quart or more. State v. Drake, 86 Tex. 329, 24 S. W. 790. A statute forbidding the sale of liquor in quantities less than three gallons is held to be superseded by a later statute forbidding the sale in any quantity the court declaring that: "Since the legislature has forbid the sale of spirituous liquors in any quantity without a license, the previ- ous law forbidding the sale in cer- tain quantities, has unquestionably been superseded and rendered nuga- tory, as the general proposition must necessarily embrace the particular or -I ecial one." State v. Turner. 18 S. C. 103, 106. Per Mr. Justice Mclver. *>!» Sanderlin v. State. 2 Humph. (Tenn.) 315. 92. Paul v. Gloucester County. 50 X. J. L. 585, 15 Atl. 272. 1 L. R. A. 86n. 146 PARTICULAR STATUTORY REGULATIONS. [§§ 122,123 not apply to liquor, the right to sell which in the state is given by any law or treaty of the United States. 93 § 122. Requiring seller to make returns or keep statement. The legislature may require persons who hold a permit to manufacture or sell intoxicating liquors to make returns at certain dates to designated officials. 94 The keeping by a manufacturer of a tabular statement of all sales may also be required containing the date of sale and name of the purchaser. Under such a statute it has been decided that there is a sufficient compliance therewith where, although no tabular statement is kept, his books, kept in the usual course of business contain the same entries as are re- quired in the statement. 95 § 123. Committing sale to particular classes of persons. The state may by virtue of its police power commit the sale of liquor to a particular class of persons and therefore a statute which restricts the privilege of selling liquor for medical and other purposes to druggists is not unconstitutional on the ground of its being class legislation. 96 So it is said in a recent case that 93. People v. Quant, 12 How. Pr. (N. Y.) 8.3. The court said: "The right to sell is only claimed as an in- cident to the right to import; and the United States Supreme Court held, that as the right to regulate commerce with foreign nations is vastly solely in congress, and as un- der that right congress admits the importation of foreign liquor in pack- ages, that while such importation con- tinues in the hands of the importer, in the form and shape it was intro- duced, it continues a part of the for- eign commerce of the country ; and that the authority to import neces- sarily carried with it the right to sell, in the form and shape in which it was imported; but when the original package was broken up for use or re- tail by the importer, or had passed from his hands into the hands of a purchaser, it ceased to be an import, and became subject to the laws of the state. This is all the law, or treaty of the United States on the subject." Per James, J. 94. State v. McEntee, 68 Iowa 381, 27 N. W. 265. 95. Barnard v. Houghton's Estate, 34 Vt. 264. 96. Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284. The court said: "It will not be doubted that the police power of the state is broad enough and strong enough to uphold any reasonable restrictions and limitations on the keeping, use § 124] PARTH ULAR STATUTORY REGULATIONS. 147 the sale of intoxicating liquors is not a privilege which can be exercised as of common right and hence a citizen cannot complain because such advantage is granted to one or more persons but is denied to others. 97 § 124. As to sales by druggists. In many states provision has been made by statute as to sales by pharmacists and surrounding the right of this class of persons to sell by various conditions and restrictions. Statutes of this character are a valid exercise of the police power. 98 Where sales by druggists are authorized by the law of the state under certain conditions, one who is licensed to sell in accordance with such or sale of any substance whose keep- ing, use or sale involves danger to the general public. * * * Her? the sale of liquor being allowed for medi- cal purposes, druggists who deal in medicines are properly named as a suitable class to whom to intrust such sale. The law does not attempt to prescribe who may and who may not become druggists. That question each individual settles for himself. It simply says that only druggists shall sell liquor. It is like a law which should forbid any but licensed engineers from running the engine of a passenger train, any but licensed attorneys from appearing for clients in a court of record, any but medic;! 1 graduates from engaging in the prac- tice of medicine. No law of this kind interferes witli individual liberty, in its true sense. Such laws protect the public only in matters involving risk and danger from the acts of unfit and improper persons. They cannot, be adjudged class legislation in any objectionable and unconstitutional sense of the term." Per Brewer, J. 07. Hall v. Dunn (Ore-. 1908), 97 Pac. 811. Per Moore, J.: citing Sandys v. Williams, 46 Oreg. 327, 80 Pac. 642; State v. Richardson, 48 Oreg. 309, 316, 85 Pac. 225, 8 L. R. A. (N. S.) 362. 98. State v. Aulman, 76 Iowa 624, 41 N. W. 379; State v. Mercer, 58 Iowa 182, 12 N. E. 269; People v. Longwell, 136 Mich. 302, 99 N. W. 1 ; Henwood v. State, 41 Miss. 579; State v. Roller, 77 Mo. 120; State v. Ham, 64 N. J. L. 49, 44 Atl. 845. Placing druggists on same footing with others. — A statute has been held not to be unconstitu- tional because it places druggists upon the same footing witli others who retail liquor to be drunk as a beverage. Roscnbaum v. Common- wealth, 7 Ky. Law. Rep. 590. [ntoxicating liquors are within the words of a statute which authorizes druggists to keep "all medicines and poisons authorized by the United States Dispensatory and Pharmaco- pcea as of recognized medicinal util- ity." Pollard v. Allen, 96 Me. 455, 52 Atl. 924. Where a statute provides for the granting of "permits" to druggists t<> sell liquors for certain purposes proof thai a druggist sold liquor without a license does not show that 14 S PARTICULAR STATUTORY REGULATIONS. [§ 125 conditions must keep himself within the limitations and restric- tions imposed by the statute in connection with such sales." Where a statute prohibits a druggist from selling intoxicating liquor to one whom he has reason to believe desires to use it as a beverage or where it is not to be used as a remedy for an ailment or to one under the influence of liquor or to be drank upon his premises it is discretionary with him to sell upon a proper appli- cation therefor and he need give no reason for a refusal to sell nor is he liable in an action for damages for such refusal. 1 § 125. Same subjects-requiring of prescription. In the exercise of the police power the legislature may regulate how whisky may be sold by druggists and to this end may pre- scribe the form of prescriptions to be given by physicians. 2 Where the form of prescription is prescribed by statute, in order to protect the druggist the prescription must comply with the statute and if it does not in substance conform thereto the sale is unauthorized. 3 And where a statute prohibits a sale by a drug- gist except on the written prescription of a regular practicing physician, a sale by a druggist without a prescription is held not to be excused by the fact that he is a physician. 4 he may not have been authorized by for medical purposes in local option a "permit" to sell it. Canfield v. districts. Edgar v. .State (Tex. Civ. Leadville, 7 Colo. App. 453, 43 Pac. App. 1907), 102 S. W. 439. gTQ No power to prohibit sale for 99. Commonwealth v. Gould, 158 medical purposes.— In Kentucky, Mass. 499, 33 N. E. 656; Common- however, it is declared that the leg- wealth v. ' Joslin, 158 Mass. 482, 33 islature has no power to prohibit the N. E. 653, 21 L. R. A. 449n. sale of liquor as a medicine though it 1. Treahey v. Holliday, 43 Kans. may prescribe as a conditon of a sale 29 22 Pac. 1004. f° r 8Ucn purpose that it shall be 2. Hutson v. Commonwealth, 32 made upon the prescription of a reg- Ky. Law Rep. 392, 105 S. W. 955. ular practicing physician. Common- Per Hokon, J.; citing Commonwealth wealth v. Fowler, 96 Ky. 166, 28 S. v. Fowler, 17 Ky. Law Rep. 1209, 96 W. 786, 33 L. R. A. 839. Kv 166 34 S. W. 21. 3 * Hutson v. Commonwealth, 32 Regulation of sale in local op- Ky. Law Rep. 392, 105 S. W. 955. tion districts.— The legislature has Per Hokon, J. power to regulate the sale of liquor 4. Tilford v. State, 109 Ind. 359, § L26] PARTICULAR STATUTORY REGULATIONS. 149 § 126. Same subject — extent of right to sell. A statute which authorizes pharmacists lawfully registered to keep spirituous liquors for compounding their medicines includes the right to sell the medicines so compounded but it docs not con- fer the right to sell such liquors to others for the purpose of being compounded as in such a case the purchaser is under no obliga- tion to so use them and the object of the statute which is to re- strict and suppress the sale of such liquors and the evils resulting therefrom might thereby be defeated. 5 And where a statute pro- vides that " durggists may sell for medicinal purposes only, pure alcohol to other druggists, apothecaries and physicians known to be such " a sale of alcohol by a commission merchant to wholesale druggists does not come within the permissive terms of the statute, there being no evidence that such commission merchants were druggists. 6 10 N. E. 107. See also State v. Anderson, 81 Mo. 78 ; wherein it is declared that to allow druggists to act in the douhle capacity of practic- ing physician and salesman, would lead to such abuse as to make the law a dead letter. But see Boone v. State, 10 Tex. App. 418, 38 Am. Rep. 641, holding that where there was a case of actual sickness, as was shown by the facts in this case, which required the use of whisky as a medicine, the defendant being a regular practicing physician had the right to sell it without having the prescription of another physician. The court de- clared (hat the act did not apply to practicing physicians when the whisky is sold as a medicine in case of actual sickness but to persons who were not physicians and therefore not supposed to be proper judges of the necessity of giving this stimulant as such, or as a solvent of other medicines. Where there was nothing in the prescription to indicate an evasion of the statute yet where it appeared that instead of the com- pound called for by the prescription whisky alone was sold and such sale was in local option territory in which territory a sale could only be made upon a prescription conforming to the statute it was held that the de- fendant's guilt was properly ad- judged. Hutson v. Commonwealth, 32 Ky. Law Rep. 392, 105 S. W. 955. 5. State v. Brown, 60 N. H. 205; State v. Shaw. 58 X. H. 72. Amount of purchases as evi- dence of intent to violate law.— In the absence of evidence of the ex- tent or magnitude of a defendant's business as a druggist, no presump- tion of an intent to sell intoxicating liquors in violation of the law arises from the quantity of liquor purchased by him. Innocence is presumed until the contrary is proved. Pollard v. Allen. 96 Me. -i:.:.. 52 Atl. 924. <'». Mills v. Perkins, 120 Mass. 41. 150 PARTICULAR STATUTORY REGULATIONS. [§ 127 § 127. Returns by druggists. A frequent statutory provision is that requiring a druggist or pharmacist to make a report or statement to some designated offi- cial containing in more or less detail the facts as to the sale, such as the person to whom made, the amount sold, and the purposes for which sold. 7 A statute requiring that returns be made to a desig- nated public official of all sales of intoxicating liquors by any per- son holding a permit or license to manufacture or sell the same is held to require one who sells liquors on the prescription of a phy- sician to make such return. 8 And a statute requiring druggists in counties where a local option law is in force to report to the prosecuting attorney of the county, under oath, all sales of intoxi- cating liquors does not violate constitutional provisions prohibit- ing unreasonable searches and seizures or providing that no per- son shall be compelled in a criminal case, to be a witness against himself, nor be deprived of life, liberty or property without due 7. Sufficiency of report.— A stat- ute requiring a druggist in a county adopting prohibition to make weekly reports to the prosecuting attorney, giving the full name and residence of every person procuring liquor at his drug store during the previous week, the kind and quantity of liquor pro- cured, the date of procuring the same, and the object for which each pur- chase is made, is not prohibitory of the use of ditto marks to indicate dates, residence, kind, and quantity of liquor procured. People v. Remus, 135 Mich. 629, 98 N. W. 397, 100 X. W. 403. "Where object of purchase must be stated. — Where the object for which Liquor is purchased from a druggist must be stated in a report which be is required to make the word "medical" has been held to be a sufficient statement thereof. People v. Remus, 135 Mich. 029, 98 N. \V. 397, 100 X. W. 403. As to repeal of act requiring record.— A general statute requiring every druggist to keep an accurate register in a book kept for that special purpose of every sale of liquor made by him, is not repealed or sus- pend by the fact that an election held in a county under a special local option law applicable to that county has resulted against the sale of liquor. Lawson v. Commonwealth, 23 Ky. Law Rep. 1983, 66 S. W. 1010. In Texas it has been decided that the legislature may require parties selling intoxicants on prescription in local option territories to file with the clerk on the first of each month all prescriptions filled by the seller dur- ing the preceding month together with an affidavit attached thereto. Holland v. State, 51 Tex. Cr. 547, 103 S. W. 631. 8. State v. Chamberlain, 74 Iowa. 266, 37 N. W. 326. § 128] PARTICULAR STATUTORY REGULATIONS. 151 process of law. Such a statute is held to be a legitimate exercise of the police powers of the state in respect to the sale of intoxicating liquors. 9 § 128. Requiring written application or request. It is within the power of the state to impose certain conditions with which a purchaser or seller of intoxicating liquors must comply, such as that the purchaser shall present a signed request stating for whom and for whose use the liquor is bought, his residence and the number of the house if the houses are numbered. It may also require that the exact purpose for which such liquor is to be used must be stated. Such requirements must be complied with and the purchaser cannot avoid compliance therewith by proving oversight, forgetfulness or mistake. 10 So where a statute requires that before selling intoxicating liquors a written appli- cation must be made out stating the name of the purchaser, his residence and the name of the person for whom purchased, the statute is not complied with where a pharmacist sells such liquor on an application containing the name of the purchaser only and it is no defense to a prosecution for a violation of the act that the defendant acted without criminal intent, or in the belief that such requirements of the law were immaterial. 11 And it has been de- cided that the provisions of a statute requiring druggists having a permit to sell intoxicating liquor to do so only upon an affidavit made by the applicant and subscribed by him in ink. are man- datory and a sale of intoxicating liquor made for medical pur- poses without complying with such provisions is a criminal offensi .'- ;>. People v. Henwood, 123 Mich. «7 p a c. 370; citing State v. Davis, 14 317, 82 X. W. 70. Kan. 60, 24 Pac. 73. The eourl said: !<>• State v. Swallum, 111 Iowa 37. "The evident object of these require- 82 N. W. 439. ments of the statute furnish an mi- ll. State v. Harris. 122 Iowa 78, mistakahle guide for its interpreta- 97 N. W. 1093. tion. Manifestly it was intended that 12. state v. Gregory, 74 Elans. 467, an oath with all its solemnities and 152 PARTICULAR STATUTORY REGULATIONS. [§§ 129, 130 § 129. As to sales by social clubs. A statute providing that any corporation chartered and organ- ized as a social club and paying a certain tax may distribute and dispense intoxicating liquors to and among its members without obtaining any license or paying any other tax provided that such corporation is organized and conducted as a bona fide social club does not violate a constituional provision forbidding the legis- lature from granting to any private corporation, association or individual any special or exclusive privilege, right or immunity. Such a statute is a general law. 13 § 130. Inspection of liquors. The state may provide for the inspection of liquors and the appointment of an inspector. 14 It has the power to impose re- formalities should be administered to every applicant upon sales of li- quor to persons desiring to use it as a beverage. The law provides that these applications shall be filed in the office of the probate judge, where they are open to public inspection and ex- amination. They might become use- ful as evidence in prosecutions for violations of the law. It is impor- tant therefore that the name of the purchaser should not be open to erasure or change on account of use in examination, lapse of time, or otherwise. The provision that the name shall be signed in ink sub- serves this purpose." Per Graves, J. In Missouri it has been decided that a statute which prohibits a druggist from selling or giving away or otherwise disposing of "alcohol or intoxicating liquor of any kind in any quantity less than fo\ir gallons for any purpose except on a written prescription " is for the purpose of regulating the sale of such liquors by druggists and is violated where a prescription is compounded by a drug- gist without the prescription required by law, without regard to the propor- tion of liquor to the other ingredients or the intoxicating character of the prescription. State v. Sharpe, 119 Mo. App. 386, 95 S. W. 298. 13. City of Norfolk v. Board of Trade & B. M. Ass'n (Va. 1909), 63 S. E. 987. As to sales by social clubs. See chap. XXIII herein. 14. Attorney General v. Lawton, 30 Mich. 386; Catherwood v. Collins, 48 Pa. St. 480. Where inspector not ap- pointed. — Where an " act to prevent the adulteration of alcoholic liquors " provides that an inspector shall be ap- pointed by a public functionary and he has failed or neglected to make such appointment, it has been de- cided that one who manufactures, sells or imports adulterated liquors, knowing them to be such, comes never- theless, within the prohibitions of the law and subject to its penalties but that the vendor of such liquors which are pure, though not inspected, is not § 131] PARTICULAR STATUTORY REGULATIONS. 153 strictions upon one class of intoxicating liquors which is not appli- cable to another class. Thus it may require the inspection of all beer and malt liquors and exact a fee therefor and such a regu- lation is not subject to the objection that it is not uniform and makes an arbitrary classification in segregating beer and malt liquors and should apply to all intoxicating liquors. 15 And it is no objection to the validity of such an act that the inspection fees, which the manufacturers are required to pay thereunder are greatly in excess of the cost of inspection and arc a source of revenue to the state. 16 And the fact that by statute brewers are classified with manufacturers and merchants and are permitted to manufacture beer upon the same conditions that the manu- facture and sale of other commodities is permitted does not work as an estoppel upon a subsequent legislature so as to prevent it from legislating upon the subject or from changing the existing law in respect thereto. 17 § 131. As to adulteration of liquors. The preservation of the public health is one of the objects to be attained by the exercise of the police power and therefore it is a legitimate exercise of this power to pass legislation aimed against the adulteration of liquors and wines and to provide in what manner the adulterated article may be distinguished from the pure article. 18 So it has been decided that one who sells impure and within the prohibitions nor subject to this subject, they not only did not the penalties unless an inspector of attempt to bind succeeding legisla- whose services he mighl avail him- tures, but in the exercise of this police self, has been appointed. Smith v. power they were without authority to Kihhee, 9 Ohio St. 563. estop, not only their successors, but 15. State v. Bixman, 162 Mo. 1. 62 themselves." Per Oautt. .T. g_ vv\ S2S. ls - Ex parte Kohler, 74 Cal. 38, 15 16. State v. Bixman, 162 Mo. 1, 62 Pac. 436; State v. Stanton. 37 Conn. S. W. 828. 421. 17. State v. Bixman. 162 Mo. 1, (52 The labeling of whisky, mix- S. W. 82S. The court said: "While tures, and imitations thereof, former legislatures were free to enact under the food and drugs act of such regulations as they saw fit on June 30, 1906.— UNITED STATES 154 PARTICULAE STATUTORY REGULATIONS. [§ 131 adulterated wine iu violation of the statute is subject to the pen- Departmext of Agriculture, Office of the Secretary. Food Inspection Decision No. 113. Under the Food and Drugs' Act of June 30, 1900, all unmixed distilled spirits from grain, colored and flav- ored with harmless color and flavor, in the customary ways, either by the charred barrel process, or by the ad- dition of caramel and harmless flavor, if of potable strength and not less than 80° proof, are entitled to the name whisky without qualification. If the proof be less than 80°, i. e., if more water be added, the actual proof must be stated" upon the label and this requirement applies as well to blends and compounds of whisky. Whiskies of the same or different kinds, i. e., straight whisky, recti- fied whisky, redistilled whisky and neutral spirits whisky are like sub- stances and mixtures of such whis- kies, with or without harmless color or flavor used for purposes of color- ing and flavoring only, are blends under the law and must be so labeled. In labeling blends the Act requires two things to be stated upon the label to bring the blended product within the exception provided by the statute: First, the blend must be labeled, branded or tagged so as to plainly indicate that it is a blend, in other words that it is composed of two or more like substances, which in the case of whisky must each be of itself a whisky, and Second, the word " blend " must be plainly stated upon the package in which the mixture is offered for sale. A mixture of whis- kies therefore, with or without harm- less coloring or flavoring, used for coloring and flavoring only, is cor- rectly labeled " Kerwan Whisky. A Blend of Whiskies." Since the term whisky is restricted to distillates from grain, and distil- lates from other sources are unlike substances to distillates from grain, such distillates from other sources without admixture with grain distil- lates are misbranded if labeled whisky without qualification, or as a blend of whiskies. However, mix- tures of whisky, with a potable al- coholic distillate from sources other than grain, such as cane, fruit or veg- etables, are not misbranded if labeled compound whisky, provided the fol- lowing requirements of the law are complied with : First, that the prod- uct shall be labeled, branded or tagged so as to plainly indicate that it is a compound, i. e., not a mixture of like substances, in this case whis- kies; and, Second, that the word " Compound " is plainly stated upon the package in which the mixture is offered for sale. For example, a mix- ture of whisky, in quantity sufficient to dominate the character of the mix- ture, with a potable alcoholic distil- late from sources other than grain and including harmless color and flavor is correctly labeled " Kerwan Whisky. A compound of whisky and cane distillate." Unmixed potable al- coholic distillates from sources other than grain, with or without harmless color or flavor, are not misbranded if labeled " Imitation Whisky." When an essence or oil is added to a distillate of grain, which without such addition is entitled to the name whisky, and the effect of such addi- tion is to produce a product which simulates a whisky of another kind different from the kind of whisky to which the essence is added, the mix- ture is an imitation of the particular kind of whisky which is simulated, e. g., if rye essence be added to a § 131] PARTICULAR STATUTORY REGULA I 155 alty thereby imposed though at the time of the sale In- is the agent of a principal who resides without the state. 19 And the man; of a mercantile corporation is held liable to the penalty so impost d when the adulterated article is sold or offered for sale by an agent of such corporation acting within the scope of his authority. 20 And in some states sellers of liquors are required by statute to take an oath not to adulterate them. 21 And it has been decided highly rectified distillate of corn, the mixture is misbranded if labeled rye whisky. Such a mixture is not mis- branded if labeled " Whisky — Imita- tion Rye." Nothing in the Fond and Drugs' Act inhibits any truthful statement upon the label of any product subject to its terms, such as the particular kind or kinds of whisky, vended as whisky or as blends or compounds thereof, but when descriptive matter, qualifying the name whisky, is placed upon the label, it must be strictly true, and not misleading in any particular. The law makes no allowance for sel- ler's praise upon the label, if false or misleading, and the product is mis- branded if a false or misleading state- ment be made upon one part of the label and the truth about the product be stated upon another part. Simi- larly a product is misbranded if the label is false or misleading through the use of a trade-marked statement, design or device. The fact that a phrase, design or device is registered in the U. S. Patent Office gives no license for its deceptive use. All de- scriptive matter qualifying or partic- ularizing the kind of whisky, whether volunteered or required by the lav I be staled, as in the case of blends and compounds, musl be given due prom- inence as compared with the size of type and the background in which the name whisky appears, so thai tin- label as a whole shall not be mislead- ing in any particular. Food Inspection Decisions 4.">. •:.">, 95 and 1)8, and all rulings in conflict herewith, are hereby revoked. Franklin MacVeagh, Secretary of the Treasury. James Wilson, Secretary of Agriculture. Charles Nagel, Secretary of Commerce & Labor. Washington, D. C. February 16, 1910. To justify a conviction in such a case it is not necessary to prove that the defendant knew that the li- quors were adulterated. State v. Stanton, 37 Conn. 421. Adulteration as defense to ac- tion for liquors sold. — In this con- nection it has been decided that a statute which provides that in all actions for the price of any spirituous, vinous or malt liquors the fact that such liquors or admixtures thereof were impure, vitiated or adulterated shall constitute a good and sufficient defense applies only in those i where the quality or value of such li- quor 'ii impaired by the im- purity, vitiation or adulteration. Clohessy v. Roedelheim, 99 Pa. St. 5G. 19. Meyer v. state, 54 Ohio St. 242, 43 X. K. 164. •2(K Meyer V. stale. .".4 Ohio St. 242, 43 X. E. lt!4. 21. state v. Ferguson, 72 Mo. 297; state v. Martin. 3 Ileisk. (Term.) 487. 156 PARTICULAR STATUTORY REGULATIONS. [§ 132 that such a statute applies to druggists, and that they are obliged to take the oath required that they will not adulterate liquors sold by them, 22 though they may be permitted to mix and adulterate liquors for medical and mechanical purposes. 23 § 132. Designation of cereals to be used in manufacture of malt liquors. The power of the legislature to regulate and prohibit the sale or manufacture of intoxicating liquors includes the right to pre- scribe what cereals may be used in the manufacture of beer and malt liquors, and to exclude a cereal which in its judgment is harmful or injurious to the health of the people. 24 So where a statute in Missouri prescribed what cereals should be used in manufacturing beer and excluded the use of wheat and corn it was said by the court : " Much indignation is expressed in one of the briefs that the legislature has assumed to itself to prescribe the cereals which shall be used in the manufacture of beer, especi- ally in excluding wheat and corn. Counsel assume that these two cereals make a perfectly innocuous beer. As to this we need only say that the legislature can absolutely prevent the brewing of beer or other intoxicating liquor if it sees fit, and in the exer- cise of its police power it may exclude any cereal that in its judg- 22. Xewman v. State, 7 Lea referred to is not in conflict with this (Tenn.) G17. view, as that, while permitting the 23. State v. Ferguson, 72 Mo. 297, mixture and adulteration of liquors wherein the court said: "The law for medicinal and mechanical pur- under consideration exempts no one poses, must be understood as taken whomsoever from its penal provisions, in subjection to the provisions of sec- except upon the performance of the tion 4, supra, requiring the making conditions which it prescribes. We of the oath and the giving of bond as are not authorized to make exceptions a condition precedent to making any and exemptions not made by the legis- lawful sale of liquors." Per Sher- lature. The druggist and the phy- wood, C. J. sician, therefore, stand on the same See also State v. Summers, 142 Mo. footing as the saloon keeper, if sell- 586, 44 S. W. 797. ing in violation of the statute, by 24. State v. Bixman, 162 Mo. 1, not having previously made oath and 62 S. W. 828. given bond. Section 6 of the chapter § 133] PARTICULAR STATUTORY REGULATIONS. 157 ment would be deleterious to the health of the people of this state and, if there be a doubt as to the noxious character of the cereal, then the legislative determination of the fad is conclusive." But the fact that the legislature in providing that only certain enumerated things shall enter into the manufacture of beer does not mention water is not to be construed as meaning that water is excluded, as in brewing beer water is necesasry and the principle applies that all laws must be given a reasonable, and not an ab- surd, construction. 26 § 133. As to furnishing public record of internal revenue receipt. The state may in the exercise of its police powers legislate in regard to the possession of receipts for the payment of an internal revenue tax to the United States and provide what the effect of such possession shall be so far as it tends to show a violation of the state law prohibiting or restricting the liquor traffic. 27 So in North Dakota it has been decided that a state may in the exercise of such power make it a public offense for any citizen of the state to procure a receipt issued to him by the government of the United States for the payment of the internal revenue tax upon the occu- pation of a retail dealer in distilled, malt and fermented liquors and to neglect or refuse to furnish a public record thereof. 28 The 25. State v. Bixman, 102 Mo. 1, 30, more onerous consequences on the 62 S. W. 828. Per Gantt, J. paying of such federal tax than Con- 26. State v. Bixman, 162 Mo. 1, gress has seen fit to prescribe.' This 62 S. W. 828. is all very true but the fallacy of this 27. State v. Hanson, 16 X. D. 347, argument consists in the erroneous i - 113 X. W. 371. sumption as before staid, that by 28. stale v. Sanson, 16 X. D. 347, the ad in question tbe state has at- 113 X. W. 371- The court said: tempted to add other duties to the "Petitioner's counsel urged thai eon- taxpayer, as such, with reference to gress has declared what the duties of his compliance with the federal stat- a taxpayer are with reference to ute. The reasoning of counsel, if car- making public the fad of the i board of a city which imposed a tine in excess of that which the law gave it authority to impose, was. in so far as it was in excess of the limit prescribed, void. 3. State v. King, 37 Iowa 402. 162 MUNICIPAL POWERS AND REGULATIONS. [§ 135 that any sales of intoxicating liquors made thereafter by persons who have not complied with the provisions thereof shall be un- lawful is not to be regarded as an ex post facto law, though one may already have a license to sell such liquors. 4 § 135. Grants strictly construed. Grants to municipal corporations will be strictly construed so as not to invest in them any right or power not expressly or by necessary implication conferred upon them. This is a general rule applicable to the exercise of powers by such corporations and applies alike to grants to them in respect to the control, regula- tion, or prohibition of the liquor traffic. 5 In determining the leg- 4. Moore v. City of Indianapolis, 120 Ind. 483, 22 N. E. 424. B. Florida. — Mernaugh v. City of Orlando, 41 Fla. 433, 27 So. 34. Georgia. — Turner v. Mayor of Forsyth, 78 Ga. 683, 3 S. E. 649. Indiana. — Champer v. City of Greencastle, 138 Ind. 339, 35 N. E. 14, 24 L. R. A. 768n, 46 Am. St. Rep. 390. Iowa. — City of Burlington v. Kel- lar, 18 Iowa 59. Kentucky. — Knifer v. City of Louis- ville, 7 Bush 599. Mississippi. Leonard v. City of Canton, 35 Miss. 189. Oregon. — Houck v. Ashland, 40 Oreg. 117, 66 Pac. 697. Texas. Craddock v. State, 18 Tex. App. 567. "Where there are both special and general grants of power to municipal corporations to pass ordi- nances, those given under the special grant, as a general rule can only be exercised in the eases and to the ex- tent as respects those matters al- lowed by the charter or incorporating act; and the powers given under the general grant do not enlarge or annul those conferred by the special grant in respect to its subject matters, but gives authority to pass ordinances, reasonable in their character within the scope of the municipal authority not repugnant to the constitution and laws of the state. Mernaugh v. City of Orlando, 41 Fla. 433, 27 So. 34. When exclusive power not con- ferred. — It has been decided that ex- clusive power to regulate, control and prohibit the liquor traffic is not con- ferred upon a city by a grant of au- thority to close saloons on Sunday, and such power can not be exercised in derogation of the general law. Ex parte Ginnochio, 30 Tex. App. 584, 18 S. W. 82. Ordinance as to having in possession. — Where a city is by its charter authorized to declare the sell- ing or keeping for sale of intoxicat- ing liquors a nuisance it has no au- thority to make it an offense for one to have such liquors in his posses- sion, such an ordinance being an in- terference with the individual's right of property. Sullivan v. City of Oneida, 61 111. 242. So where a city is authorized to license and regulate the sale of liquors it can not by ordinance prohibit a per- son from bringing into the city either upon his person or as per- MUNICIPAL POWERS AND REGULATIONS. 103 § 136] islativc intent so far as the powers of a municipality are con- cerned the entire charter may be looked to in order to determine whether the power claimed may be said to be necessarily, or by fair implication, implied in or be an incident to, the powers which are expressly granted." And in case of a doubt as to the extent of the power which has been conferred upon a municipality such doubt should be determined in favor of the public. 7 § 136. Incidental or implied powers. While a muncipal corporation must act within the limits of its delegated powers it may enact all laws necessary or proper to carry into effect a given power, 8 or in other words it may exercise such incidental powers as are implied by, and which are essential sonal baggage, intoxicating liquors as this amounts to prohibiting one from having in his possession such liquors which the state itself cannot do, since liquor is property of the possession of which a man cannot be deprived. Commonwealth v. Cap- bell, (Ky. 1909), 117 S. W. 3S3. 6. Houck v. Ashland, 40 Oreg. 117, f;6 Pac. 697, so holding in reaching the conclusion that a city had the power to license the sale of intoxi- cating liquors. 7. Ex parte Simms, 40 Fla. 432, 25 So. 280. 8. Ex parte Burnett, 30 Ala. 461. Where an express power is granted by statute to a municipal corpora- tion there is also impliedly granted the power to carry it into effect. City of Portland v. Schmidt, 13 Oreg. 17, 6 Pac. 221. General welfare clause. — It would seem that under the general welfare clause in a city charter the city may prohibit the keeping for any purpose whatever of any intoxicating liquor in any refreshment saloon or restaurant where such ordinance does not conflict with the laws of the state. State v. Clark, 28 N. II. 170, 61 Am. Dec. 611, holding that keeping liquor in a cellar, under a refresh- ment saloon or restuarant violated the ordinance. And a provision in the charter of a town authorizing its trustees to pass ordinances " for preservation of good order, decorum and decency within its limits " and to prescribe penalties for the violation of said ordinances will authorize an ordi- nance prescribing a penalty for the sale of whisky in the town, if the sale of whisky in the county of which the town is apart is forbidden by state laws. Fortner v. Duncan, ill Ky. 171, 15 S. W. 55, 11 L. R. A. 1SS. And power conferred noon a munic- ipality to j>;i>s laws and ordinances for the suppression of offenses against public morality and decency lias I held to authorize it to prohibit by ordinance the sale of spirituous liq- uors within its corporate limits. Russellville Ex parte, in re Hurley, 95 Ala. lit. 11 So. ]S. Of course, however, under such a 1(34 MUNICIPAL POWEKS AND REGULATIONS. [§ 137 to accomplish the purposes of, its creation. 9 But the incidental powers possessed by municipal corporations will not be enlarged by construction to the detriment of individual or public rights. 10 And where the grant of power is not clear courts will not give a forced construction to a statute, which is justified only by a necessity which does not exist in order to construe a statute as conferring a claimed power to pass an ordinance. 11 § 137. Same subject— power to suppress, regulate or restrain. Power to suppress, regulate and restrain embraces the authority to adopt the usual means employed for such purpose and the mere adoption of an ordinance which declares that liquor shall not be sold but which imposes no penalty for its non-observance does not tend in the slightest degree to accomplish the end sought. 12 So where the legislature has in express terms conferred upon municipalities power to pass and enforce ordinances for the regu- lation and sale of intoxicating liquors, therein prescribing what shall constitute the penalty for the violation thereof, an ordinance of a city passed for the regulation and sale of intoxicating liquors, failing to prescribe the penalties within the limits fixed by the legislature is void and cannot be enforced. 13 sale the power to prohibit could not whether or not the city will wholly be exercised unless it were consist- prohibit its sale, or license and regu- ent with the law of the state. late the traffic. Schwuckow v. City Under authority given to a of Chicago, 68 111. 444. town to prevent and restrain 9« Champer v. City of Greencastle, drunkenness the giving of intoxi- 138 Ind. 339, 35 N. E. 14, 24 L. R. A. eating liquors to one who is a ha- 768n, 46 Am. St. Rep. 390. bitual drunkard or in the habit of 10. Harris v. Intendant and Coun- becoming intoxicated may be pro- cil of Livingston, 28 Ala. 577. hibited. Woods v. Town of Pine- 11* Commonwealth v. Voorhies, 12 ville, in Oreg. 108, 23 Pac. 880. B. Mon. (Ky.) 361. Where the legislature confers 12. City of Pekin v. Swelzel, 21 111. the power to suppress groceries 464, 74 Am. Dec. 105. where liquor is sold, or to regu- 13. Assaria v. Wells, 68 Kan. 787, late, license and rest ruin the same, it 75 Pac. 1026. is a matter purely discretionary § 138] MUNICIPAL POWERS AND REGULATIONS. 1(55 § 138. Power of city to prohibit. Legislation by municipal corporations must be within the scope of the powers conferred upon them and they have no power to pass an ordinance making a general prohibition against the sale of intoxicating liquors unless such power has been granted them by the state. 14 So power conferred upon a city to prohibit the 14. — Arkansas. — Tuck v. Town <>f Waldron, 31 Ark. 402. Florida. Mernaugh v. City of Or- lando, 41 Fla. 433, 27 So. 34. Indiana. Sweet v. City of Wabash, 41 Ind. 7. Louisiana. — State v. Harper, 42 La. Ann. 312, 7 So. 446; followed in Police Jury v. Harper, 42 La. Ann. 776, 7 So. 716. New Jersey.— Rossell v. Garon, 50 N. J. L. 358, 13 Atl. 26. Oregon. — City of Portland v. Schmidt, 13 Oreg. 17, 6 Pac. 221. Utah. — Logan City v. Buck, 3 Utah 301, 2 Pac. 706, followed in Logan City v. Puck, 3 Utah 307, 5 Pac. 564. A dispensary law was held in South Carolina not to prevent the passage of an ordinance by a city prohibiting ''he sale of intoxicating liquors, whore such power was given to the city by its charter. Florence v. Brown, 49 S. C. 332, 26 S. E. 880, 27 S. E. 273. Where a city in pursuance of a power in its charter adopts an ordi- nance prohibiting the sale of any in- toxicating liquors within its limits, if sales are made of such liquors in the city for a lawful purpose, the burden is upon the seller to prove such fact. Gunnarssohn v. City of Sterling, 92 111. 569. See also Ear- baugh v. City of Monmouth, 74 111. 367. It is not necessary that a pro- hibition should be a total one where power is given to " license, regulate ami prohibit," but the prohi- bition may be partial as for instance against sales which are not author- ized by law. ennehy v. City of Chi- cago, 120 111. 627, 12 N. E. 227. Where a city is authorized by its charter " to license, regulate, prohibit or restrain houses or places for the selling or giving away of wines or other liquors, whether ardent, vinous or fermented " it has power to pass an ordinance prohibiting the sale of liquor as a beverage by druggists and limiting the right of sale to medicinal purposes. Provo City v. Churtliff, 4 Utah, 15, 5 Pac. 302. In Colorado it has been decided that it is within the power of an incor- porated town to forbid the giving away of intoxicating liquor. Litch v. The People, 19 Colo. App. 421, 75 Pac. 1079. In California it is decided that under a constitutional provision con- ferring power upon towns to enforce police regulations within their limits which do not conflict with the general laws, an ordinance is valid which prohibits the alcoholic traffic. Ex parte Mogcnsen (Cal. C. A. 1907), 90 Pac. 1063. Ordinance not interference with interstate commerce. — An ordinance which prohibits t lie sale of intoxicating liquors, -'at wholesale or retail in connection with dnii_ r s or in drug stoics" is not an interference witli interstate commerce. Jacobs Pharmacy Co. v. City of Atlanta, 89 Fed. 244. l$Q MUNICIPAL POWERS AND REGULATIONS. [§ 139 sale of liquors within the corporate limits by any person " without having secured a license " therefor does not authorize the passage of an ordinance making an absolute prohibition upon the sale of liquor. 15 And the placing by the state of an occupation tax or license fee upon a particular business, such as the liquor traffic, or the sale of " near beer " evinces such a legislative policy as will preclude a municipality in the absence of an express delega- tion of authority from prohibiting such business or traffic though it may pass reasonable regulations, even under the general wel- fare clause, in respect thereto. 16 So, where the state by the im- position of a license fee recognizes the existence of clubs and their right to keep liquors for the use of their members a city has no right to pass an ordinance prohibiting the assembling of such liquors in a bona fide club where the tax or license fee imposed by the state has been paid. 17 In this connection it has been decided that a constitutional provision that the general assembly shall not have power to authorize a municipal corporation to pass any laws inconsistent with the general laws of the state, does not limit the grant of police powers to such corporation, nor in- hibit a grant of the power to prohibit the sale of spirituous liquors, though the general statutes only license and regulate the traffic. 18 § 139. Grant of power to regulate, restrain or license. Power is frequently conferred by the legislature upon a city to control, regulate or restrain the liquor traffic within the cor- porate limits. In some cases under the grant of the power to regulate or restrain the right to prohibit has been claimed to 15. Brownrigg v. Town Council S. E. 807; Miller v. Shropshire, 124 of Livingston, 120 Ala. 93, 28 So. Ga. 829, 59 S. E. 335. 616> 17. Wright v. Mayor, (Ga. 1909), 10. Campbell v. City of Thomas- 64 S. E. 807. ville (Ga. L9 9), 04 S. E. 815; See I s - Ex parte Cowert, 92 Ala. 94, Wright v. Mayor (Ga. 1909), 64 9 So. 225. § 139] MUNICIPAL POWERS AND REGULATIONS. KIT exist. As a general rule, however, it would seem that such words confer no authority upon the municipal authorities to absolutely prohibit such traffic, but that if such power exists it must be by virtue of express authority to so act. This is only an application of the rule that the grant of power to such corporations is to be strictly construed, and even without going to the extent of strict construction it would certainly be giving an elastic construction to the words " regulate " or " restrain " to hold that they also mean to " prohibit." 19 So it is said that the terms " regulate " and " restrain " as used in a statute delegating power to a muni- cipality are construed as not including the power to prohibit, but rather as contemplating the existence and continuance of places for the sale of liquor and to restrict the city to reasonable regula- tions and restraints in such business. 20 And power merely to exact a license fee should likewise confer no authority to prohibit. 21 And under this general power to license, regulate l». State v. Dannenberg (N. C. 1909), 63 S. E. 946; Brousou v. Ober- lin, 41 Ohio St. 476, 52 Am. Rep. 90. In California it is said to be the declared law of that state " that the governing power of the county or municipality may prohibit the manu- facture or sale of intoxicating liq- uors altogether, or that such county or municipality may impose such con- ditions upon the sale of such liquors as it pleases." Denton v. Vann (Cal. App. 1908), 97 Pac. 675. In a case in Alabama, however, it is decided that a municipal corpora- tion incorporated under the general statute authorizing the corporate au- thorities to license, tax, regulate and restrain the sale of Buch liquors has authority to prohibit the sale of liq- uor in its corporate limits it being declared that the word restrain as used in this connection is the legal equivalent of the verb to prohibit. Smith v. Town of Warrior, 99 Ala. 481, 12 So. 418. Under full power given to a city to regulate the wholesale and retail traffic in intoxicating liquor it may by ordinance prohibit the sale of liquors " at wholesale or retail in connection with drugs or in drug stores." Jacobs Pharmacy Co. v. City of Atlanta, 89 Fed. 244. 20. Mernaugh v. City of Orlando, 41 Fla. 433, 27 So. 34. The words " restrain " in a statute giving a city power "to license, tax, regulate and restrain " the liquor traf- fic is to be taken in its ordinary mean- ing that is to abridge, confine, keep in, hold in and the like and is not to be construed as giving power to the city to prohibit such traffic. Ensley v. State (I nd. S. ('. 1909), 88 N. E. 62. Compare Vinson v. Town of Monticello, US Ind. 103, 19 N. E. 734. 16S MUNICIPAL POWERS AND EEGULATIONS. [§ 140 and prohibit, a city has no power to pass an ordinance prohibiting the sale of such liquors or the exposing of them for sale, in any place of business in the city where any dry goods, clothing, jewelry, or hardware are kept or exposed for sale. Such an ordinance is declared not to be based upon any ground of police regulation but directed solely against sale by certain persons in ■ their places of business. The court said that the ordinance per- mitted other dealers in merchandise, except those mentioned, to sell liquor from their stores, and that the restriction was purely arbitrary, having no connection with and not tending in any way toward the protection of the public against the evils arising from the sale of intoxicating liquor, the liquor being sold only in packages and not for consumption at place sold. 22 § 140. Prohibiting keeping for unlawful sale. A city, under the general welfare clause of its charter, may law- fully adopt an ordinance making penal the storing, or keeping, for unlawful purpose, of any article the sale of which, under such cir- cumstances, is contrary to a state statute. 23 So it has been decided that a city may forbid the keeping of intoxicating liquors for illegal sale, it being declared the illegal sale of anything may be prohibited no matter what protections and restrictions are thrown around it by the general law of the state. 24 And it has been decided that so long as the owner of liquors retains posses- sion of them, intending to deliver them, on an unlawful contract of sale, such possession is within a municipal ordinance which prohibits the keeping of such liquors for unlawful sale. 25 21. Hill v. Commissioners of De- 32 S. E. 363; Rooney v. Augusta, 117 catur, 22 Ga. 203. Ga. 709, 45 S. E. 72 ; See also Reese v. 22. City of Chicago v. Netcher, 183 City of Newnan, 120 Ga. 198, 47 111. 104, 55 N. E. 707, 48 L. R. A. S. E. 500. 261n, 75 Am. St. Rep. 93. 24. Osburn v. Marietta, 118 Ga. 53, 23. Robinson v. Americus, 121 Ga. 44 S. E. 807. 180, 45 S. E. 924; citing Paulk v. Sy- 25. Menken v. City of Atlanta, 78 eamore, 104 Ga. 728, 30 S. E. 417; Ga. 668, 2 S. E. 559. Papworth v. Fitzgerald, 106 Ga. 378, §§ 141,142] MUNICIPAL POWEBS AND REGULATIONS. ],;;, § 141. Ordinances should be general. Ordinances should be general in their terms and operation. They should not render it possible for persona engaged in busi- ness in a public place to carry it on, while prohibiting othi rs, who come in afterward, from carrying on similar business. This principle has been applied to ordinances regulating or restrain- ing the sale of intoxicating liquors. 26 § 142. Ordinances must be reasonable. A city ordinance passed under an implied power or under a general grant of power, is not valid unless it is reasonable and within the power conferred either by express statute or by neces- sary implication. 27 The presumption, however, is in favor of their validity, and it is incumbent upon any one who seeks to have them set aside as unreasonable to point out or show affirm- atively wherein such unreasonableness consists. 28 And courts have no power to declare an ordinance void on the ground that it is unreasonable unless its unreasonableness is so clear, manifest and undoubted as to amount to a mere arbitrary exercise of the power vested in the legislative body. 29 36. Town of Mandeville v. Band, When the question as to the reas- 111 La. 806, 35 So. 915. onableness of a municipal by-law or 27. People v. Cregier, 138 111. 401, city ordinance is raised and it ha3 28 N. E. 812; Ensley v. State, (Ind. reference to a subject matter within 1909), 88 N. E. 62 j Champer v. City the corporate jurisdiction it will be of Greencastle, 138 Ind. 339, 35 N. E. presumed to be reasonable unless the 14, 24 L. R. A. 768n. 46 Am. St. Rep. contrary appears on the face of the 390. law itself or is established by proper Ordinance as to chairs and evidence." Van Hook v. City of Se seats. — It has been held a reasonable lina. 70 Ala. 361, 4f> Am. Rep. 85 provision to pro-vide by ordinance Per Somervillc. J., citing Obm that no chairs or seat-, of any monwealth v. Patch, 97 M;i. State v. Barge, 82 Minn. 256, 28. People v. Cregier, 138 111. 401, 84 X. W. 1116. 28 N. E. 812. 170 MUNICIPAL POWERS AND REGULATIONS. [§§ 143,144,145 § 143. Where title of ordinance contains surplusage. Where there is only one subject contained in the body of an ordinance, which is clearly expressed in its title, the fact that such title may contain surplusage will not render the ordinance obnoxious to the limitation providing that it shall not contain more than one subject, which shall be clearly expressed in the title. 30 § 144. Ordinances having extra-territorial effect. The legislature may confer jurisdiction upon a municipal cor- poration not only to regulate and require a license of all keepers of places within its corporate limits but also may designate limits beyond its corporate limits over which such ju" ! «diction may extend. 31 But in the absence of power conferred by the legis- lature a town cannot give its ordinances an extra-territorial effect. 32 § 145. Ordinances should conform to law of state. Ordinances must be subordinate to and harmonize with the general law of the state unless special powers are conferred upon the municipality by its charter. 33 A municipal corporation in exercising any power in respect to the intoxicating liquor traffic must not act in excess of the authority delegated to it. 34 So it may 30. In re Thomas, Petitioner, 53 purposes beyond the corporate limits. Kan. 659, 37 Pac. 171. 32. Strauss v. Town of Pontiac, 40 31. Lutz v. City of Crawfordsville, 111. 301. 109 Ind. 466, 10 N. E. 411, sustaining 33. State v. Brittain, 89 N. C. 574. a statute conferring jurisdiction two 34. Alabama. — Norris v. Town of miles beyond such limits. See also Oakman, 138 Ala. 411, 35 So. 450. Van Hook v. City of Selina, 70 Ala. Georgia. — City of Barnesville v. 361, 45 Am. Rep. 85, citing Chicago Murphey, 113 Ga. 779, 39 S. E. 413. Co. v. Chicago, 88 111. 221, holding Indiana. Carr v. Town of Fowler, that the legislature may pass an act 74 Ind. 590. extending, for police purposes merely, Massachusetts. — Commonwealth v. the limits of a municipality, and con- Turner, 1 Cush. 493. ferring power on tlio city authorities Missouri. — State v. Schweickardt, to pass by-laws operating for such 109 Mo. 496, 19 S. W. 47. 14G] MI'NM IIWI. I'OWKKS AM) KECil'LATIONS. 171 be stated generally that where the statute of a state conflicts with the ordinance of a municipal corporation the former controls; and where a municipality departs from or exceeds the power conferred upon it, an ordinance so passed is void. 86 Bu1 though the traffic is rcognized by the state by its imposing a license fee or tax the city may under the general welfare clause pass regulations, not pro- hibitory in character, in respect thereto. 38 § 146. Same subject — application of rule. Where by statute a city is authorized to prevent the " selling or giving away " of intoxicating liquors, an ordinance is in excess of the power conferred which makes it unlawful to sell, give away, " furnish or cause to be furnished or delivered " any such liquors. 37 And a city incorporated under the general law of the state which authorizes it " to regulate or prohibit the sale of in- toxicating liquors not prohibited by the laws of this state," has New Jersey. — Featherstone v. Lam- bertville, 50 N. J. L. 507, 14 Atl. 599. North Carolina. — State v. Brittain, 89 N. C. 574. Wisconsin. — Glentz v. State, 38 Wis. 549. An ordinance of a munici- pal corporation must conform strictly to the provisions of the statute giving the power to pass the ordinance in question, or its proceed- ings will be void. ELniper v. City of Louisville, 7 Mush I Ky. ) 599. Ordinance incorporating pro- visions of statute. — Where a city which is authorized to prohibit and punish any act, matter or thing which by the laws of the state is made a misdemeanor and to prescribe pen- alties for violating any city ordinance not exceed ing the penalties prescribed for similar offenses againsl the state laws incorporates into its laws and ordinances the statutes of the state prohibiting the sale of liquors by the " blind tiger ", the action of the city council in so doing makes such pro- visions valid ordinances of the city. City of Searcy v. Turner, (Ark. 1908), 114 S. W. 472. tt5». Georgia. — Adams v. Mayor of Albany, 29 Ga. 5G. Iowa. City of Burlington v. Kel- lar, 18 Iowa 59. Kansas. — City of Eureka v. Davis. 21 Kan. 578. Mississippi. — House v. State, 41 Miss. :i7. Xtic York. — Wood v. City of Brook- lyn. 14 Barb. (N. V.) 425. Ohio. — Thompson v. City of Mount Vernon, 11 Ohio St. 688. :»:. Campbell \. City of Thomas- ville. (Ga. 1909), 64 S. E. 815, so holding as to the trathc in " near beer." 37. Norris v. Town of Oakman, 138 Ala. 411, 35 So. 450. 172 MUNICIPAL POWEPS AND PECULATIONS. [§ 146 no power to pass an ordinance authorizing the forfeiture or destruction of liquors kept for sale in violation of an ordinance of the city. 3S And a statute authorizing villages to suppress saloons for the sale of intoxicating liquors confers no authority to enlarge the commonly understood meaning of the word " saloon " by declaring that any person selling liquor within the village shall be deemed to be a saloon keeper. 39 So power given to prohibit tippling houses and dram shops does not authorize the passage of an ordinance forbidding the sale of spirits and beer in any quantity or for any purpose, except by persons authorized to sell for medicinal, mechanical or manufacturing purposes. 40 iSTor does authority conferred upon a town to license, regulate and prohibit inns and taverns embrace authority to regulate the sale of liquors outside of inns and taverns. 41 And the general welfare clause does not authorize the passage of an ordinance making it penal for one who has lawfully purchased, without the limits of the municipality, alcoholic liquors, to receive the same therein without paying a specific tax of a given amount for the privilege of so doing. 42 Again where by the constitution of a state the monies received from liquor licenses are to be devoted to a certain purpose, any city charter or other enactment which attempts to devote them to any other object is unconstitutional 38. Henke v. McCord, 55 Iowa 378, municipality. The court said: "The 7 X. W. 023. policy of a state is to be ascertained 39. Village of Sparta v. Brown, f r °m its published statutes and laws. 129 Mid,. 555, 89 N. W. 435, 90 N. W. There never having been in force any ggj law making penal the purchase of ._ _, „ , „ ,. . A intoxicating liquors within this state, 40. Strauss v. Town of Pontiac, 40 . . , , . , ^ , ,_ i ... it may far'y be said that such a law would be a departure from its settled 41. State v. Fay. 44 N. J. L. 474. pubHc po]icy; and any guch depart . 42. Benderson v. Heyward, 109 Ga. ure must commence with the general 373, 34 S. E. 590, 47 L. R. A. 36G, assembly itself, either by a direct law 77 Am. St. Pep. 384, holding that to tll j„ ^^i, or by granting to some the above is true notwithstanding the subordinate public corporation of the sale of such liquors is absolutely state express authority to make such prohibited within the limits of such a departure." Per Cobb, J. §§ 117, IIS] MUNICIPAL POWERS AND BEGULATIONS. 17;; and void. 43 So a village ordinance making unlawful the sale of liquors without a license, passed under the authority of a charter adopted at the time when the constitution forbade the enactment of license laws is held to be void. 11 And any ordinance or law which authorizes the authorities of a town to close a saloon by force, without having it first judicially d< dared a nuisance, and ordered to be abated, is held to be unconstitutional. 45 § 147. Same subject — engaging in liquor traffic. Neither the general welfare clause usually found in city charters nor the power to license and regulate saloons authorizes a city to engage in the liquor traffic. 46 So power given to a munic- ipal corporation to control and direct the sale of liquors within its limits confers no authority upon it to create a dispensary and authorize commissioners appointed to manage the same to sell liquors under the terms and conditions prescribed in the ordinance conferring the power. 47 § 148. Same subject — Ordinance providing for fine or punish- ment Where a statute directs what punishment all city ordinances shall impose for their violation, the city in exercising its au- thority must comply with the provisions of such act and an or- dinance is void which provides a less punishment than is pre- 43. Yazoo City v. State, 48 Miss. 47. Lofton v. Collins, 117 Ga. 434, 440. 43 S. E. 70S, 61 L. R. A. 150. The 44. Village of Mount Pleasant v. court said: " We think it was not the Vansice, 4:? Mich. 361, 5 N. W. 378, intention of the legislature, by giving 38 Am. Rep. 193, holding also that the mayor or aldermen the exclusive the subsequent repeal of the consti- right to control and direct the sale tutional amendment did not make it of liquors, to authorize their sale in a valid. See also Dewar v. People, 40 dispensary of this kind. * * * A Mich. 401. 29 Am. Rep. 545. grant of power to a municipal corpo- 45. Baldwin v. Smith, 82 111. 102. ration must be construed strictly, and 46. Mayor of Leesburg v. Putnam, such a corporation can exercise no 103 Ga. 110. 29 S. E. G02. 68 Am. powers except such as are expressly St. Rep. 80. given or are necessarily implied from j- 4 MUNICIPAL POWERS AND REGULATIONS. [§ 149 scribed in the statute. 48 Where, however, a statute directs what imprisonment all ordinances shall impose for their violation but does not specify whether the imprisonment shall be in the jail of the county or the city prison, the city may by ordinance provide that offenders shall be committed to the city prison and such ordi- nance is not subject to an objection that because city prisons are not uniform throughout the state in respect to the conditions affect- ing the comfort and health the punishment would be unequal and would amount to a milder degree of punishment in one than in another. 49 And there being no constitutional provision grant- ing to offenders the right to liquidate or discharge their violations of law by a fine instead of imprisonment, or giving them an option in respect to the method of punishment, an ordinance was held not to be invalid because it permitted a municipal court to impose a sentence of imprisonment without the option of pay- ing a fine or providing for a jury trial in the case of one accused of its violation. 50 § 149. As to powers of municipal officers. The power to act can only be exercised by the officials or boards in whom the power is vested in accordance with the manner prescribed. 51 So it has been declared that where power is con- ferred upon a municipal corporation to regulate any calling or business, it is so done with the intention that such power shall be exercised by the corporation and in the mode prescribed, and it is not warranted in delegating a discretionary power to others or to an individual. 52 And the common council of a city in express grants of other powers. No 50. State v. Collins (Minn. 1909), power to establish a dispensary was 120 N. W. 1081. here expressly given, and we think 51. Wilson v. Whelan, 91 Ga. 4G1, that none was necessarily implied." 17 S. E. 90G ; Featherstone v. Lam- Per Simmons, C. J. bertville, 50 N. J. L. 507, 14Atl. 599; 48. In re Van Tuyl, 71 Kans. 659, Glentz v. State, 38 Wis. 54!). 81 Pac. 181. 52> City of East St. Louis v. Weh- 49. City of Wichita v. Murphy, rung, 50 111. 28. (Kans. 1908), 99 Pac. 272. Powers to common council.— § 150] MUNICIPAL POWERS AND REGULATIONS. 175 exercising the powers conferred upon it to restrain, control and regulate this traffic and to pass the appropriate ordinance, is clothed with discretionary powers, the exercise of which the courts cannot control. 53 § 150. General law as repealing municipal powers and ordinances. A general law will not operate to repeal by implication a munic- ipal ordinance on the subject, or the charter power of a muni- vipality to enact ordinances not inconsistent with the general law where such intention is not manifest. And the principle of courts not favoring repeal by implication is said to have peculiar force in such a case where the laws, the implied repeal of which one is in question were special laws enacted to meet the needs of particular localities, under their particular conditions, while the repealing act is general and not thus particular. And also the court will consider the fact that subsequent to the passage of the general law the state pursued the same policy of conferring upon local governing bodies of cities and towns the power to pass regulations of a like nature. 54 But where a general law makes a certain act Where the power to license the traf- fic in spirituous liquors is by the charter of a city, expressly conferred on the city council this power can- not be delegated to the mayor of the city by ordinance, Kinmundy v. Mahan, 72 111. 462, citing City of East St. Louis v. Wehrung, 50 111. 31. Power conferred upon a city coun- cil of a city to make reasonable reg- ulations as to where or within what parts of th ■ city the business of deal- ing in intoxicating liquors may be carried on is a legislative power which can not be delegated to the mayor or other city official. If must be exercised by an ordinance passed by the council. In re Wilson, 32 Minn. 145, 19 N. W. 723. See also State v. Kantler, 33 Minn. 69, 21 N. W. 856; Darling v. City of St. Paul, 19 Minn. 389. B3. State v. Common Council, 94 Minn. 81, 101 N. W. 1063. 54. State v. Harris, 50 Minn. 128, 52 N. W. 387, 531. Where a village was incorpo- rated under a general village incorporation act which provided that it should have power to suppress Baloons, for the sale of spirituous and intoxicating liquors it was decided that all ordinance passed under such authority for the suppression of sa- loons were by implication repealed b a general liquor law which was sub- sequently enacted. Village of Sparta v. Boorom, 129 Mich. 535, 89 N. W. 435, 90 X. \V. 681. 176 MUNICIPAL POWERS AND REGULATIONS. [§ 151 an offense and prescribes the punishment therefor it is decided that such enactment operates to repeal the provisions of charters granted prior thereto and which are inconsistent therewith except so far as provisions in the charters may be excepted from the operation of the general law. 55 § 151. Act conferring power on city as repealing general law. The grant by the legislature to an incorporated city or town of power in respect to the liquor traffic does not by implication repeal the general law upon that subject but to have that effect the repeal must be express or the acts repugnant in their pro- visions. 56 Unless it be plainly manifest that such is the inten- tion of the legislature, no provisions of a city charter will be construed as repealing, changing or modifying a general law of the state which was in force in such city before the charter was enacted. 57 So power conferred upon a city to control, regulate, license or tax the sale of spirituous or intoxicating liquors within A statute which gives the right to tLe manufacturer to sell wine made from grapes grown on his own Ian' 1 floes not take away from cities and cowns, having power to regulate the liquor traffic within their limits, authority to prescribe by ordi- nance that such wines when sold shall be free from injurious adulter- ations. Stephens v. Henderson, 129 Ga. 218, 47 S. E. 498. 55. President of Village of Platte- ville v. McKernan, 54 Wis. 487, 11 N. \V. 7^8. 56. Gardner v. People, 20 111. 430. State v. Witter, 107 N. C. 792, 12 S. E. 328. 57. State v. Fisher, 33 Wis. 154. The general law of a state respect- ing the sale of intoxicating liquors is not to be regarded as abrogated within a certain locality, and left operative generally, unless such an intention is apparent in the legis- lative enactments. State v. Langdon, 29 Minn. 393, 13 N. W. 187. Where power is conferred upon a municipality to do certain acts in re- spect to the liquor traffic, which are in conflict with any other general or local law which is in force, the con- ferring of the power does not of it- self operate as a repeal of the prior law, but such law continues in force until the power conferred by the sub- sequent act has been exercised. State v. Rushing, 140 Ala. 187, 36 So. 1007. The grant to a municipality of power to license regulate or control this traffic must, so far as it can, be e eised in conformity to the general law which it does not operate to re- peal. City of Louisville v. Kean, 18 B. Mon. (Ky.) 9. Corbett v. Wash- ington Territory, 1 Wash. Ter. 431. § 151] MUNICIPAL POWERS AND REGULATIONS. 177 its limits, is not to be construed as repealing general laws of the state, but such power must be exercised in a manner which is not in conflict therewith. Thus such power confer re. 1 upon a city will not allow it to pass any regulation which conflicts with a general law of the state requiring the closing of saloons on Sunday. 58 And where exclusive power is given to cities of a certain class to regulate and license the sale of liquors within their limits the general law of the state will of course not be regarded as repealed where the statute conferring such power provides that it is granted subject to all the restrictions, regulations, forfeitures and penalties provided by the general law of the state upon the subject. 59 And where an act to regulate the sale of liquors in a 58. McCuen v. State, 19 Ark 636; Heinssen v. State, 14 Colo. 228, 23 Pac. 995 ; Palmer v. State, 2 Oreg. 66. In a case in Colorado it was decided that the grant of exclusive power and authority to one jurisdiction, to restrain, regulate or prohibit a bus- iness to every day in the week, was irreconcilable with the existence of a concurrent power to prohibit the ex- ercise of the same vocation upon a single day in the week and that a special act incorporating a city and vesting it with exclusive jurisdiction over the whole subject repealed the general law by necessary implication. Huffsnrith v. People, 8 Colo. 175, 6 Pac. 157, 54 Am. Rep. 550. In this case the act gave exclusive power to tbe city of Denver to make such regulations and impose such re- straints as it deemed expedient pro- vided the same were not repugnant to the constitution of the United States or the Constitution of the State of Colorado. In a subsequent ease in tlii< state. however, the use of the word repeal in the earlier case is explained by stat- ing in substance thai the word "re- pealed " was improperly used and that more properly speaking the word " suspended should have been used and that such suspension was only ef- fected when the city passed the or- dinance and that a subsequent repeal of the ordinance left the general law of the state in force. Heinssen v. State, 14 Colo. 228, 23 Pac. 995. And in later cases it has been de- cided that a general statute against keeping saloons open on Sunday is in force in cities and towns that have assumed under the law the exclusive right to license, regulate or prohibit the sale of liquor within their limits. Muller v. People, 24 Colo. 251, 48 Pac. 965, followed in Jackson v. People, 24 Colo. 254, 48 Pac. 1115. See also Pettit v. People, 24 Colo. 517, 52 Pac. 676. 59. Sanders v. State, 34 Neb. 872, 52 N. W. 721. A provision in tbe charter of a city limiting the power of the city council to pass ordinance as follows: '"Pro- vided that they be not repugnant to the constitution of the United States or of this state" does no! exempt the city from the operation of the gen- eral excise laws of the state. State v. Fisher, 33 Wis. 154. 178 MUNICIPAL POWERS AND KEGULATIONS. [§§ 152,153 town is expressly kept in force by a provision in a subsequent general statute, if the two statutes cannot operate together within the same territorial limits, the provisions of the subsequent statute will be regarded as not applicable. 60 § 152. Construing- statutes ordinances together. Statutes and city ordinances passed under power conferred by the legislature may in many cases be construed together, as where the statute does not entirely cover the matter and the city in the exercise of the power conferred passes an ordinance which is in its nature supplementary to the regulations of the statute or the offenses designated therein, and not being in fact in conflict there- with, it may be enforced. 61 § 153. Statute and ordinance making same act an offense. The fact that a certain act is made an offense against the law of the state is held not to prevent the authorities of a town, under a proper delegation of power, from making regulations in respect to the doing of such act and making the violation of the ordinance an offense also. 62 So in an early case in Indiana it was decided that though a party cannot be punished twice for the same act under the same jurisdiction, he may under different jurisdictions, as for an act in violation of the charter of a city and the penal law of the state. 63 But a city must be specially authorized in order to enable it to make that an offense against the city and 60. Camp v. State, 27 Ala. 53. ute, both cannot be enforced so as to 61. State v. Welch, 36 Conn. 215; subject a party to a double penalty. Hill v. Mayor, 72 Ga. 314; Village The same act may constitute an of Cohoes v. Moran, 25 How. Pr. (N. offense both against a state law and Y.) 385. a city ordinance, and the punishment 62. Mayor v. Rouse, 8 Ala. 515; of the offender by either the city or State v. Harris, 50 Minn. 128. Com- the state will not bar a prosecution pare Wighl man v. State, 10 Ohio 452. by the other. Fortner v. Duncan, 91 Compare State v. Welch, 30 Conn. Ky. 171, 15 S. W. 55, 11 L. R. A. 188. 215, holding that so far as a gen- But see § 108 of Ky. Const. eral statute covers the same ground 63. Ambrose v. State, 6 Ind. 351. with a city by-law authorized by stat- §§ 154,155] MUNICIPAL POWERS AND REGULATIONS. 179 punishable as such where it is also an offense against the laws of the state. 04 § 154. Construing ordinances together. The general rule which controls in the construction of statutes that where a subsequent statute is consistent with a former one the earlier statute will not be regarded as repealed, but that the two will be construed together and effect given thereto if possible applies in construing ordinance relating to the liquor traffic. So where an ordinance provided that no one should conduct a dram shop without a license fee therefor, and a later ordinance pro- vided regulations which must be complied with by an applicant for a license in order to obtain it this rule was applied. 65 And where an ordinance which provides that it repeals a former ordi- nance, contains provisions which are void, it will not operate to repeal the provisions of such former ordinance which are in con- flict with the void provisions. 66 § 155. Ordinance invalid or invalid in part. Where an ordinance in regard to the sale of intoxicating liquors is invalid it does not operate to repeal a former ordinance. 67 And in construing ordinances it is a generally accepted rule that where an ordinance contains both valid and invalid provisions and the latter can be eliminated without affecting the remainder it will not be invalid in toto, but the valid part will be allowed to stand. 68 So though a city ordinance prohibiting the sales of 04. Foster v. Brown. 55 Iowa 686. 60. City of Portland v. Schmidt, Power not inferred.— Authority 13 Oreg. 17. 6 Pac. 221. to enact an ordinance providing pun. 67. Ensley v. State, (Ind. S. C. ishmenl for an act which ia an offense 1909), 88 \. K. 62. against the laws of the state can not 68. Florida. Canova v. Williams, be inferred irom the general welfare 41 Fla. 509, 27 So. 30. clause usually found in city charters. Georgia. — Campbell v. City of Moran v. City of Atlanta. 102 Ga. Thomasville (Ga. 1909). 64 S. E. 840, 30 S. E. 208. 815. «">• Ex parte Hinkle, 104 Mo. App. Indiana. — Wagner v. Town of 104, 78 S. W. 317. Garrett, 118 Ind. 114, 20 N. E. 706. ISO MUNICIPAL POWERS AND EEGULATIONS. [§ 156 such liquors embraces a class of sales which the city has no power to prohibit, it may still be enforced as to such sales as the city is authorized to prohibit. 69 And where an ordinance prohibiting the sale of intoxicating liquors provides a fine as a punishment for its violation and also for imprisonment, it has been decided that though the part as to the imprisonment may be void, the remain- der of the ordinance is not thereby invalidated. 70 § 156. Prohibiting traffic in portions of city. As the state may in the exercise of the police power designate localities in which the traffic is prohibited, 71 so also may a muni- cipality under a proper delegation of power from the sovereign power, designate within its corporate limits certain sections of the city in which the sale of intoxicating liquors is forbidden, such as the residence portion of the city. 72 So in a case in Kentucky.— McNulty v. Toof, 116 Ky. 202, 75 S. W. 258. Nebraska. — State v. Hardy, 7 Neb. 377. Oregon. — Houck. v. Ashland, 40 Oreg. 117, 66 Pac. 697. 69. Harbaugh v. City of Monmouth, 74 111. 367. 70. Bailey v. State, 30 Neb. 855, 47 N. W. 208. 71. See §§ 100-104 herein. 72. People v. Blom, 120 Mich. 45, 78 N. W. 1015; Territory v. Robert- son, 19 Okla. 149, 92 Pac. 144; State v. City Council, 7 Wyo. 417, 52 Pac. 97.',, 40 L. R. A. 710. " Near beer ".—A city may pro- hibit Bale of in certain sections. Campbell v. City of Thomasville (Ga. 190!),. 64 S. K. 815. " The legislature of a state is au- thorized to empower city councils by special charter to prescribe the boun- daries and limits within which the sale of liquor shall be prohibited by law and such local authorities may define and limit the area within which alone such sale may be lawful." Ex parte King, 52 Tex. Cr. 383, 107 S. W. 549. Per Ramsey, J., citing Cohen v. Rice (Tex. Civ. A.) 101 S. W. 1052. Words " residence portion " construed. — Under such a statute the words " residence portion of a city " do not necessarily mean a portion of the city given up exclusively to fam- ily residences. Shea v. City of Mun- cie, 148 Ind. 14, 46 N. E. 138. Prohibiting wholesalers.— An ordinance is not unreasonable or un- justly discriminatory in the absence of satisfactory showing to this effect which prohibits wholesale vendors of intoxicating liquors from carrying on the business in a certain district while at the same time it permits saloons and liquor selling restuarants to con- tinue in operation. Grumbach v. Le- lande (Cal. S. C. 1909), 9S Pac. 1059. Prohibiting saloons near parks. — Where by statute the park § 156] MUNICIPAL POWEKS A.XI) REGULATIONS. 181 Michigan it is said: "Under this comprehensive police power of tin state it is, in my judgment, too clear for argument that the legislature may confer upon municipalities the right to determine the places where saloons may be kept, and to determine that question upon each application." 7 '' So under a statute author- izing the common council of a city to regulate places where in- toxicating liquors are sold, and to exclude such sales from the suburban or residence portion of the city, the common council may fix and declare the boundaries of the business district of a city in an ordinance excluding the sale of intoxicating liquors from the suburban or residence portion. 74 And though a muni- cipality may have no authority to pass an ordinance prohibiting the sale of intoxicating liquors within its limits, as this would be prohibition in violation of a state law, yet it is declared that it may designate, under proper authority, the localities where the sale of such liquors is inhibited, as this is regulation and not prohibition. 75 And in a recent case in Illinois, it is decided that municipalities, under a general power granted to them to license, regulate and prohibit the sale or giving away of intoxicating liquors, have authority to define the territory within which the commissioners of a city are given the that other evidence may be admitted power " to forbid by general order or to show that the place of sale by de- rules and to abate any horse racing, fendant was in fact in the business gambling, offensive or dangerous bus- portion. iness or amusement " witbin a cer- Where boundaries not de- tain number of feet of any park they clared. — Under a statute authoriz- may prohibit the carrying on of a ing the common council of a city to saloon business within the prohibited evclude such sales from the business limits. In re Arszman. 40 Ind. App. or residence portion of a city and to 218. 81 N. E. 680. confine the places where sales may 73. Sherlock v. Stuart. 90 Mich. be made to the business portion of 193, 55 N. W. 845, 21 L. R. A. 580n. the city an ordinance is not void for 74. Rowland v. City of Greencastle, indefiniteness which does not declare 157 Ind. 591, 62 N. E. 474, holding therein what the boundaries of the that on the trial of an action charg- residence and of the business por- ing a violation of such an ordinance, tions are. Shea v. City of Muncie, the ordinance is prima facie evidence 14^ Ind. 14, 40 N. E. 138. as to what is the residence and whal '•"•• Garonzik v. State, 50 Tex. Cr. the business portion of the city, but 533, 100 S. W. 374. 182 MUNICIPAL POWERS AND REGULATIONS. [§§ 157,158 business may be conducted. 76 And in Indiana, it has been held that under a general power to municipalities to regulate the liquor traffic they may exclude such traffic from residence districts. 77 § 157. Same subject — ordinances construed. An ordinance which prescribes certain limits within which the traffic in intoxicating liquors may be carried on and outside of which it is forbidden, is not a discrimination or a denial of the equal protection of the law within the meaning of Fourteenth Amendment to the United States Constitution. 78 Where a liquor regulation excludes the conduct of a business from a given district in which such establishments are already in operation, it is no objection to the validity of the regulation that its effect is to impair or render valueless the business of those operating such establishments. 79 An ordinance providing that no license for the sale of alcoholic or malt drinks shall be used within a certain distance of any school or established church at the time said license was granted, without the consent of the council of the city, has been held void in that it permits of an arbitrary discrimination by said council as to personal fitness to engage in the business of retailing, a matter exclusively under statutory regulation. 80 § 158. As to ordinances where territory annexed to city. As a general rule, where territory is annexed to a city, the 76. Strauss v. City of Galesburg, that when the adoption of a niunici- 203 111. 234, 67 N. E. 836, aff'g pal ordinance is expressly authorized Strauss v. City of Galesburg, 89 111. by the legislature, and the power so App. 504. granted is not in conflict with a con- 77. City of Greencastle v. Thomp- stitutional prohibition, it cannot be son, 168 Ind. 492, 81 N. E. 497, citing successfully assailed as unreasonable In re Wilson, 32 Minn. 145, 19 N. W. in a judicial tribunal." Per Mont- 723; Strauss v. City of Galesburg, gomery, J. 203 111. 234, 67 N. E. 836; Mayor v. 78. Williams v. State, 52 Tex. Cr. Shattuck, 19 Colo. 104, 34 Pac. 947, 371, 107 S. W. 1121. 41 Am. St. R. 208. 79. Grumbach v. Lelande (Cal. S. The court said in the case referred C. 1908), 98 Pac. 1059. to in the text: "Conceding that a 80- Ex parte Theisen, 30 Fla. 529, delegated authority must be strictly 11 So. 901, 32 Am. St. Rep. 36. construed, it is a well-settled principle § 159] MUNICIPAL POWERS AND REGULATIONS. 133 ordinances of the city relating to the liquor traffic became at once operative over the portion annexed in the absence of some countervailing legislation. 81 But the legislature may provide that ordinances of such annexed territory may remain in force therein. 82 § 159. Ordinance as to screens etc. A citj in the exercise of the power conferred upon it to regulate and restrain the liquor traffic may require the removal of screens or curtains from the windows of a saloon during the hours that it is supposed to be closed. Such an ordinance invades no rights of the saloon proprietor but rather tends to enforce a perform- ance of the law as to keeping the saloon closed and forbidding the sale of liquor during such hours. 83 And a city may by or- dinance prohibit partitions and provide that windows and doors shall be kept so as not to conceal interior of saloons where by char- ter the city is given power to regulate or prohibit the sale of spirit- uous liquors. 84 But a municipal corporation, under authority to license, regulate or restrain, has no power to pass an ordinance requiring the removal from the doors or windows of all saloons, of all screens or other obstructions to the view of the interior of, 81. People v. Harrison, 191 111. 257, Va'rley (Neb. 1908), 118 N. W. 1114. 61 N. E. 99. "Near beer ".—City may prohibit si». People v. Harrison, 191 111. 257, screens in places where sold. Camp- 61 \. E. 99; Swiff v. Klein, 1G3 111. bell v. City of Thomasville (Ga. 269, 45 N. E. 219. 1909). 04 S. E. 815. s '5- Decker v. Sargeant, 125 Ind. General words following particular 404, 25 N. E. 458; Croker v. Camden and specific words, must, as a general Board of Excise, 73 N. J. L. 460, 63 rule, be confined to things of the same Atl. 901. kind as there specified. Shultz v. What constitutes a violation. Cambridge, 38 Ohio St. 659, holding — A movable screen maintained in in respeci to an ordinance requiring the front of a saloon sufficienl to ob- the removal of screens, curtains, struct the view of the interior blinds " or other device from windows through the door or window is a and doors of Baloons, that the words violation of the screen law although "other device" do not include a par- at certain places from the outside tit ion of a permanent character, substantially all the interior of the 84. Paul v. Washington, 134 N. C. saloon can be observed. Woods v. 303. 47 S. E. 703, 65 L. R. A. 902. 1S4 MUNICIPAL POWEES AND REGULATIONS. [§§ 160, 161 and business transacted within, such saloon, such an ordinance being void, as being prohibitive of a lawful business, and not merely regulative. 85 § 160. Ordinances as to stalls, booths or inclosures. Under the power conferred upon a city to license and regulate the sale of intoxicating liquors it may by ordinance prohibit the maintenance of stalls, booths, or inclosures in saloons. 86 So an ordinance which forbids the keeping of any inclosure in, or con- nected with, any room wherein intoxicating liquors may be sold by a licensed dealer, which is, or can, by any ingenuity or pretense, be used as a lounging or drinking place, or for any immoral purpose, is not unreasonable, arbitrary or oppressive. 87 And where an ordinance prohibited the construction and mainte- nance of stalls, booths, or other inclosures of any kind, with screens, curtains or partitions of any kind, in or connected with any room or place wherein intoxicating liquors were licensed to be sold and the rear of a licensed room in which a saloon was conducted, was cut off by a wooden partition, making a room in which were kept tables and chairs and in the center of the parti- tion was a permanent opening without a door screen or curtain, which was slightly wider than an ordinary door it was held that such room was an inclosure within the meaning of the or- dinance. 88 § 161. Prohibiting sales to minors. The power of the state to prohibit the sales of liquors to minors is as we have seen unquestioned, 89 and such provision is gen- erally made by the laws of the state. The authority also may 85. Steffy v. Town of Monroe City, 86. State v. Barge, 82 Minn. 256, 135 Ind. 466; 35 N. E. 121, 41 Am. 84 N. W. 911. St. Rep. 436; See also Champer v. 87. State v. Barge, 82 Minn. 256, City of Greencastle, 138 Ind. 339, 35 84 N. W. 1116. N. E. 14, 24 L. R. A. 768n, 46 Am. 88. State v. McGregor, 88 Minn. 74, St. Rep. 390. 92 N. W. 509. 89. See §§ 112, 113, herein. § 102] MUNICIPAL POWERS AND REGULATIONS. £gg be expressly delegated to municipal corporations, but in the absence of such a delegation of power, the grant of authority to prohibit or even to regulate and restrain, would undoubtedly In- held to be sufficient to authorize a city to enact ordinances pro- hibiting such sales. And this power would also seem to i under the general welfare clause usually found in citv charters. So under a charter provision authorizing the commissioners of a town " to make such by-laws, rules, and regulations for the better government of the town, as they may deem necessary, provided the same be not inconsistent with the law of the land," an or- dinance is valid which prohibits an unmarried minor, excepl when acting as the agent of his parent or guardian, from entering any barroom or room where vinous or malt liquors are kept for sale. 90 § 162. Prohibitions as to women. It is held to be a fair regulation to prohibit by ordinance any keeper of a house of public entertainment, where intoxicating drinks are sold, from permitting the assembling of females there for the purpose of enticing customers. 91 And an ordinance has been sustained which provided that it should be unlawful for any female in the night time, after twelve o'clock at midnight, to be in any public drinking saloon, beer cellar, or billiard-room within the city where vinous, malt or spirituous liquors were sold or given away to be drank on the premises. 92 But an or- dinance providing, " It shall be unlawful for any persan maintain- ing any saloon, barroom or drinking shop, or any apartment thereto attached, to permit females to enter their said places of 00. State v. Austin. 114 N. C. 855, 98, 116 X. W. 558, 18 L. R. A. N. S. 19 S. E. 919, 41 Am. St. Rep. 817, 657. 25 L. R. A. 283. " Near beer.,,— Sales of to fo- ot. Hoboken v. Greiner, 68 N. J. L. malea ,n:l . v >'*' prohibited. Campbell 592 53 Atl. 693. v - City "' Thomasville (Ga. 1909), r>4 S. E. 815. See also People v. Case, 153 Mich. »2. Ex parte Smith, 38 Cal. 702. 186 MUNICIPAL POWERS AND PECULATIONS. [§ 163 business," is held to be unconstitutional, it being declared that while the drinking by females might be prohibited, yet their entrance into such a place for a purpose which might be purely legitimate and lawful could not be made the subject of a fine. 93 § 163. Prohibitions as to employment of women. The legislature may enact that only reputable persons shall be allowed to carry on the business of dealing in intoxicating liquors, and may authorize municipalities to determine the ques- tion of fitness. 94 So power conferred upon a municipality to regulate the places where intoxicating liquors are sold authorizes it to pass an ordinance prohibiting the employment of females in such places. 95 And where power is conferred upon counties, cities and towns to make " all such local, police, sanitary and other regulations as are not in conflict with the general laws," an ordinance is held to be valid which provides that no license shall be issued to any person for the purpose of engaging in the busi- ness of selling intoxicating liquors in any dance-cellar or dance- hall, or in any place where females are permitted to wait upon »3. State v. Nelson, 10 Ida. 522, 67 L. R. A. 808, 79 Pac. 79. The Court said: "There is no excep- tion ; the mere matter of entrance is the essence of the crime. There is no question about the power, and we may say the duty, of the city au- thorities to enact such ordinances as will promote morals and regulate the sale of intoxicating liquors in such a way as to prohibit immoral women from frequenting such places for the purpose of drinking, engaging in gaiws. .soliciting trade, or any other immoral purpose, but to say by an ordinance that a wife or mother may not enter a saloon without subject- ing herself to a fine (as well as the proprietor) in search of a recreant husband or a wayward son, is be- yond the legal power of the city. So long as the state and the city of Boise see fit to license the retail sale of liquors, so long must they protect parties lawfully engaged in that bus- iness in a reasonable way." Compare State v. Nelson, 10 Ida. 522, 79 Pac. 79, 67 L. R. A. 808. 94. Sherlock v. Stuart, 9G Mich. 193, 55 N. W. 845, 21 L. R. A. 580n. 95. Bergman v. Cleveland, 39 Ohio St. 651. Compare Matter of Ma- guire, 57 Cal. 604, 40 Am. Rep. 125, holding a similar ordinance to be in violation of a constitutional provision that: "No person shall on account of sex be disqualified from entering upon or pursuing any lawful busi- ness, vocation or profession." § 1C4] Ml'NICll'AL POWERS AND REGl LAT1 1-7 any person and win rein there is also any musical, theatrical or other public exhibition. 98 § 164. Requiring Sunday closing. Authority granted to a municipal corporation to " regulate, restrain, and prohibit " the sale of spirituous, vinous, or malt liquor necessarily confers the power to make and enact any reasonable ordinance or regulation in reference thereto, and an ordinance inhibiting the sale of such liquor on Sunday is declared to be within the just exercise of such power. 97 And independent of power given to a city to prohibit this traffic, authority to regulate and control such traffic, or even the general welfare clause usually found in city charters, would seem to justify ac- tion of municipal authorities directing the closing of saloons on Sunday, independent of course of any statute authorizing them to open on that day. 98 So an ordinance making it an offense for a liquor dealer to keep open any part of the division, apartments or connected sections of the house used for the business of retail- ing on Sunday, is not unreasonable or invalid. 99 And under 96. Ex parte Hayes, 98 Cal. 555, 33 Pac. n ^, 20 L. R. A. 701. 97. Cranor v. Albany, 43 Oreg. 144, 71 Pac. 1042. The court said: "This has been so often held by the courts that we need only call attention to some of the authorities " citing 17 Am. & Eng. Ency. Law (2nd Ed.) 288 ; Piqua v. Zimmerman, 35 Ohio St. 507; Decker v. Sargeant, 125 Ind. 404, 25 N. E. 458; State v. Ludwig, 21 Minn. 202; Schwuchow v. Chi- cago, 68 111. 444. 98. Florida. — Thomas v. Saunders (Fla. 1908), 47 So. 700. Georgia. — Hood v. Von Glahn, 88 Ga. 405, 14 S. E. 564. Illinois. — Schwuchow v. City of Chicago, 68 111. 444. Kentucky. Megowan v. Common- wealth, 2 Mete. 3. Louisiana. Corporation of Minden, 36 La. Ann. 912. Minnesota. State v. Hani-. 50 Minn. 128, 52 N. W. 387, 531. New Jersey. — Richards v. Bayoune, 61 N. J. L. 496, 39 Atl. 708. Ohio. City of Piqua v. Zimmerlin, 35 Ohio St. 507. Tennessee. Mayor v. Linck. 12 Lea. 499. Texas.— Gabel v. Houston, 29 Tex. 3.35. " Near beer ". — Ordinance as to closing on Sunday places for sale of is reasonable. Campbell v. City of Thomasville (Ga. 1909), 64 s. E. sir,. 99. Orme v. Mayor of Tuscumbria, 150 Ala. 520, 43 So. 584. In this case it was -aid: "Ordinances reg- ulating, under the police power, the liquor business, especially in relation 1SS MUNICIPAL POWERS AND PECULATIONS. [§ 165 authority given to a city to license, and regulate or prohibit saloons, an ordinance is not ultra vires which provides that it shall be unlawful for any saloon keeper to open his place of busi- ness on Sunday for the sale of cigars or of non-intoxicating liquors. 1 Again where power is conferred upon a city to " close drinking houses, saloons, barrooms, beer saloons and all places or establishments where intoxicating or fermented liquors are sold on Sunday, and to prescribe the hours for closing them," and an ordinance is passed which prohibits the closing of saloons for only a part of the day, Sunday, the provision of the charter conferring such power, coupled with the ordinance passed in the exercise thereof constitute a defense to a prosecution for selling liquor outside of such hours in alleged violation of the general law of the state. 2 But an ordinance prohibiting the opening of saloons on Sunday, either by the owner or his employees without the written permission of some city official or officials is held to be in its application to openings in cases of necessity or emer- gency, oppressive, unreasonable and void as giving room to ar- bitrary discrimination. 3 § 165. Requiring closing other than Sundays. Under a code provision empowering cities and towns to adopt to the property and orderly obser- cised in particular localities. Gen- vanee of the Sabbath, have been too eral laws are often wholly inapplic- often approved to require, in these able to the state at large, and it has days, any reconsideration of their accordingly been the policy of our law propriety or validity, except in the to refer to the wisdom of local au- respect to decide whether the ordi- thority questions of this character, nance brought up for consideration The wants, habits of thought, and is within the bounds fixed by para- even the prejudices of the population mount law, constitutional, statutory, of so large a state as ours are so and charter, aided by judicial decis- variant that it would be most unwise ion." Per McClellan. to deal with all alike. We think that 1. Croker v. Camden Board of Ex- the special provision in the charter cise, 73 N. J. L. 460, 63 Atl. 901. was intended as an exception to the 2. Chaddoek v. State, 18 Tex. App. general law." Per Hurt, J. 507. The court said: "There can be 3. Newbern v. McCann, 105 Tenn. no question of the authority to thus 159, 58 S. W. 114, 50 L. R. A. 476. delegate special powers to be exer- § K;(;] MUNICIPAL POWERS AND REGULATIONS. ]S!) rules and ordinances for further regulating and controlling the liquor traffic for the preservation of peace and good order, and a further provision authorizing cities to pasa ordinances to preserve the health, promote prosperity, and improve the morals, order, comfort and convenience of the public it has beer decided that a city council may pass ordinances, not in conflict with the state Law, regulating the closing of saloons on election day. 4 Lut a municipality which is empowered by statute to direct all saloons to be closed " temporarily " and making it a misdemeanor to open " during such period as the board shall so forbid " has no power to order saloons closed " until further notice," the statute being construed as requiring the time to be specified on the face of the order. 5 § 166. Power to designate hours of closing and opening of saloons. Under authority conferred on a city to license, regulate, and prohibit the sale of intoxicating liquors, the municipal authori- ties may of course designate the hours between which saloons shall be kept closed. 6 And the rule is unquestionably supported that under the power conferred upon a city to control, regulate or restrain the sale of intoxicating liquors, the municipol authorities may designate the hour at night at which a saloon shall close and at which it may open in the morning, subject, however, in all cases to this qualification that the exercise of such authority must be in conformity to the law of the state and that it must be a reasonable exercise of such power, that is the hours must not 4. Iowa City v. Mclnnerny, 114 6. Ex parte Wolf, 14 Neb. 24. Paul Iowa 586, S7 X. \V. ins. v . Washington, 134 X. C. 363, 47 S. "Near beer ".—Ordinance as to E. 793, 65 L. R. A. 902. closing place on election day for sale " Near beer.,,— City may require of is reasonable. Campbell v. City closing during nighl hours of places of Thomasville (Go. 1900). G4 S. E. where sold. Campbell v. City of 815. Thomasville (Ga. 1909), 64 S. E. 815, •"• State v. Strauss, 4'.' Md. 288. 11)0 MUNICIPAL TOWERS AND REGULATIONS. [§ 167 be such as will virtually deprive a licensee of the right conferred by his license from the state. 7 Where licensees take out licenses to engage in the liquor business they take the same subject to the power of the municipality in which such business is to be carried on to place such reasonable regulations upon the conduct thereof as may be conducive to the public welfare and good order of the community. 8 And an ordinance is not void, which prescribes the hours during which saloons shall be closed, because it docs not in express terms repeal the provisions of a prior ordinance which is inconsistent therewith, but the former ordinance will be regarded as repealed by implication, the same principle applying as in the case of statutes, that is, that where a later statute contains provi- sions which are repugnant to an earlier one, it repeals it by implica- tion. 9 § 167. Same subject— ordinances held valid — instances. Under a statute conferring power in cities to regulate the sell- ing or giving away of spirituous liquors by any person within the city other than those duly licensed and to pass such ordinances as may be expedient in maintaining the peace, good government, health and welfare of the city, an ordinance prohibiting the dispensing of spirituous liquors between certain hours of the night, requiring the closing of saloons, and the removal of ob- structions from the interior view of saloons, is authorized. 10 And an ordinance of the board of excise commissioners of a city prohibiting a licensed liquor dealer from having a light burning 7. Connecticut— State v. Welch, 36 S'ew Jersey.— State v. Borough of 2i5. Washington, 44 N. J. L. 605. Georgia.— Morris v. City Council of Wisconsin.— Village of Platteville Rome, 10 Ga. 532. v. Bell, 43 Wis. 488. Indiana.— Davis v. Fasig, 128 Ind. 8. Thomas v. Saunders (Fla. 1908), 271, 27 N. E. 726. 47 So. 796. Iowa.— City of Clinton v. Orusen- *>• Ex parte Wolf, 14 Neb. 24. dorf, 80 Town 117. 45 X. W. 407. *<>• McNulty v. Toof, 116 Ky. 202, Kentucky.— McNulty v. Toof, 116 75 S. W. 258. Ky. 202, 75 S. W. 258. § 1G8J MUNICIPAL POWERS AND REGULATIONS. 191 in his place of business between seven o'clock in the morning and twelve o'clock midnight on Sunday is not unreasonable. 11 And where a statute confers no affirmative right upon the licensee to carry on his business up to any certain time at night, it has been decided that a city under power to pass any ordinance not in conflict with the Constitution of the United States or of the state and statutes thereof may forbid any one except the proprietor from entering the place where such business is carried on between nine o'clock at night and five o'clock in the morning. 12 § 16G. Same subject — ordinances held invalid — instances. An ordinance forbidding the carrying on of the retail liquor business between the hours of six in the afternoon and six in the morning, has been held to be unreasonable, oppressive and in- valid, the power of the city, it is declared, being limited to reason- able regulations not destructive of the right conferred by the state. 13 And a municipality which has granted a license cannot require all saloons to close and not to make any sales at all times when " any denomination of Christian people " are holding divine service anywhere in the town, the ordinance being silent as to any and all other worshippers. 14 So general power to towns " to make such by-laws, rules and regulations for the better govern- ment of the town as they may deem necessary," does not empower a town to pass an ordinance forbidding one who sells liquor to occupy his own premises between certain hours. 1 "' And a village ordinance requiring all saloons to be closed during certain hours " unless by special permission of the president " is void in that it it attempts to delegate legislative power to an executive officer and because it attempts to give him arbitrary power, allowing 11. Croker v. Camden Board of Ex- (Tenn.) 228, 35 Am. Rep. 700n. cise, 73 N. J. L. 4G0, 63 Atl. 901. 14. Gilham v. Wells, 64 Ga. 192. 12. Thomas v. Saunders (Fla. IB. State v. Thomas, 118 X. C. 1908), 47 So. 79G. 1221, 24 S. E. 535. 13. Ward v. Mayor, 8 Baxt. 19 o MUNICIPAL POWERS AND REGULATIONS. [§ 169 him in the execution of the ordinance to discriminate among persons similarly situated. 10 Again where an ordinance fixing the hours between which intoxicating liquors shall not be sold contains a provision prohibiting druggists from dispensing spirituous liquors between certain hours of the night, such pro- vision is held to be invalid, a druggist not being allowed by statute to dispense liquors at any time as a drink or a beverage. 17 And an ordinance declaring that the exit or entrance of any person from any saloon during the hours specified that the same shall be closed, shall be prima facie evidence of its violation is invalid as an attempt to legislate on the weight and effect of evidence. 18 § 169. Ordinances as to quantity. The authority of a city to legislate in regard to the quantities in which liquors may be sold must depend upon the power con- ferred. If the state has a general law upon the subject -then power given to a municipal corporation merely to regulate and control the liquor traffic would not authorize any legislation in- consistent therewith. If however power is given to a city to prohibit the sale of liquors in addition to the above powers then a city might undoubtedly pass ordinances relating thereto as the power to prohibit would include the less power to prescribe the quantities in which sales may be made. And under the general power to regulate and restrain a city would be authorized to pass such ordinances in this respect as are not inconsistent with the general law of the state and in the absence of any state law upon the subject then a reasonable ordinance, not prohibitive in char- acter, would probably be sustained. Thus where power is con- ferred upon a city to pass such ordinances not inconsistent with the laws of the state as may be expedient for maintaining the 10. Little Chute v. Van Camp, 136 75 S. W. 258. Wis. 520, 117 X. W. 1012. 18- McNulty v. Toof, 116 Ky. 202, 17. McNulty v. Toof, 116 Ky. 202, 75 S. W. 258. § 170] MUNICIPAL POWERS AND REGULATIONS. lij.i peace, good government and welfare of the city and its trade and commerce, an ordinance, limiting the quantity in which a certain specified liquor may be sold is held to be valid. 11 ' And the fact that the legislature has defined a dram shop as " a place where spirituous, or vinous, or malt liquors are retailed by less quantity than one gallon" and has enacted certain laws relative to it as regulating the dram shop business does not prevent a city, to which power is granted to license, regulate and prohibit the sale or giving away of intoxicating liquors, from conferring by ordinance upon the holder of a license to keep a dram shop the power to sell liquor in any quantity other than the quantity specified by the definition. 20 Again a regulation that liquors shall not be sold in less than a certain quantity and shall not be drank at the place of sale is said to violate no private rights and not to unreasonably or improperly restrain trade. 21 § 170. Ordinance as to who may conduct business. In the absence of any general law of the state restricting the power of a municipal corporation or of any other limitation upon its authority, it is within the power of such a corporation to provide by an ordinance which is uniform in its operation as to the classes of persons by whom the traffic may be conducted. And such an ordinance which affects all persons of a certain class or classes uniformly is not void on the ground of discrimina- tion. 22 And in this connection it has been held proper for a 19. Monroe v. City of Lawrence, 1900), 64 S. E. 815. 44 Kan. 607, 24 Pac. 1113; followed 2©. Strauss v. City of Galesburg, in In re Jahn Petitioner, 55 Kan. 203 111. 234, 07 N. E. 836. See 694, 11 Pac. 956. Gunnarssohn v. City of Sterling, 92 "Near beer ".—An ordinance pro- 111. 569. hibiting the sale of in quantities less 21. Monroe v. City of Lawrence, 44 than a pint has been held reasonable Kan. 607. 24 Pac. 1113. while a prohibition of sale of more --• Foster v. Board of Police Com- than one quart to the same person in missioners, 102 Cal. 4S3, 37 Pac. 763, one day has been held unreasonable." 41 Am. St. Rep. 104. Campbell v. City of Thomasville (Ga. 194: MUNICIPAL POWERS AND PECULATIONS. [§§ 171 ? 172 municipal corporation to provide by ordinance as to the class of persons by whom sales of " near beer " may be made. 23 § 171. Ordinances as to access of officials to premises. It has been held to be a legitimate exercise of the police power vested in the state to authorize certain officials in cities and towns to enter upon the premises of any person licensed to sell intoxi- cating liquors to ascertain the manner in which he conducts his business and to preserve order. 24 So a city may, under authority to license and regulate or prohibit saloons provide by ordinance that the excise inspector shall at all times have access to all licensed saloons, excepting between certain hours when the saloons are by law required to be closed. 25 § 172. Ordinances affixing penalty. Where a general statute defines an offense and expressly limits the municipality in fixing the penalty in an ordinance as to the offense to the amount fixed by statute, the ordinance should con- form thereto. 26 But in this connection it has been decided that where authority is conferred upon a municipal corporation to suppress and prohibit the sale of intoxicating drinks, as well as to license the same, an ordinance which imposes a penalty for selling such drinks without a license, which penalty exceeds that fixed by the general law is reasonable, there being no limitation upon the power of the municipality in this respect. 27 23. Campbell v. City of Thomas- under which it is granted, and the ville (Ga. 1909), 64 S. E. 815. stipulations of the bond executed by 24. Commonwealth v. Dueey, 12G the licensee himself." Per Gray, C. J. Mass. 260, wherein it was said: "It 25. Croker v. Camden Board of Ex- is but a reasonable exercise of the cise, 73 N. J. L. 460, 63 Atl. 901. police power, to preserve the public 26. Mullins v. City of Lancaster, peace and to see that the business 23 Ky. Law Rep. 436, 63 S. W. 475. carried on in the buildings described 27. Deitz v. City of Central, 1 Colo, in the several licenses is conducted 323. See also City of Pekin v. according to the conditions of the Smelzel, 21 111. 464, 74 Am. Dec. 105. license, the provisions of the statue § 173J TAXES— LEGISLATIVE POWERS. l'j.j CHAPTER VIII. TAXES— LEGISLATIVE POWERS. Section 173. Taxation of traffic generally. 174. May levy tax though traffic prohibited. 175. Classification by legislature — population of cities and towns as basis. 176. Taxation based on amount of business. 177. Classification based on different kinds of liquors. 178. Classification of wholesalers, retailers and manufacturers. 179. Discrimination against liquors manufactured in other states. 180. Statutes making tax a lien. 181. Disposal of taxes and license fees dependent on statute. 182. Same subject continued. 183. Regularity of proceeding in levying tax — presumption. Sec. 173. Taxation of traffic generally. The state may in the exercise of its police power and as a mat- ter of police regulation or for the purpose of revenue impose a tax upon the business of trafficking in intoxicating liquors. 1 And the 1. Arkansas. — Straub v. Gordon, 27 penalties for its non-payment or for Ark. 025. a refusal to furnish the requisite in- Qeorgia. — Brown v. State, 73 Ga. formation to the assessor to make his 38; Bohler v. Schneider, 40 Ga. 195. statement of the return or to Bign Louisiana. — State v. Volkman, 20 and verify the same. Adler v. Whit- La. Ann. 585. beck, 44 Ohio St. 539, 9 N. E. 072. Michigan. — Westinghausen v. Peo- Property not to be twice pie, II Mich. 265, 6 N. W. 641. taxed for same privilege.— A safe O/, ; . — Seinor v. Ratterman, 44 and sound rule of construction of Ohio St. 601, 11 N. E. 321. revenue laws is to hold in the ab- fexas. — Napier v. Hodges, 31 Tex. Bence of express words disclosii 287; State v. Bock, 9 Tex. 369; differenl intent, thai they are not in- Tonella v. State. 4 Tex. A.pp. 325. tended to subject the same property A statute may impose a tax to be twice charged for the Bame and provide for its collection as tax, nor the same business to be other taxes are collected and impose twice taxed for the exercise of the 196 TAXES— LEGISLATIVE POWERS. [§ 173 state may impose a tax on licenses and privileges to sell liquor and suck an enactment does not violate a constitutional provision that " all moneys received for licenses granted under the general laws of the state for the sale of intoxicating liquors " shall be same privilege. Bell v. Watson, 3 Lea (Tenn.), 328. Per Cooper, J. Thus where the occupation of drug- gists was taxed and a law was also in force which provided for a tax on those engaged in the liquor traffic and declared that it should apply to all druggists it was held that a druggist was not subject to the payment of such tax unless he also sold liquors. The Druggist Cases, 85 Tenn. 449, 3 S. W. 490. Municipalities have no inher- ent right to decide for themselves what taxes shall be levied for the general purposes of local government and it is not therefore a valid objec- tion to local liquor taxes that the municipality is not consulted in their levy. Youngblood v. Sexton, 32 Mich. 40G, 20 Am. Rep. 654. Adoption of local option— •when exempts from state law.— Where the statutes providing for the adoption of a local option law permits the sale of liquors for certain purposes in the locality where such law may be adopted, by such act the persons who are permitted to sell for such pur- poses are held to be relieved from the payment of a tax provided for by another general law as to licensing and taxing the traffic. Rathburn v. State, 88 Tex. 281, 31 S. W. 189. Injunction against enforce- ment of tax law. — The same objec- tions are held to apply to the grant- ing of an injunction against the en- forcement of a liquor tax law as ap- ply to the granting of an injunction against any other tax or revenue law, whether the liquor law is strictly a tax law or not one of its objects at least being to raise a revenue to de- fray state and local expenses. Ba- logh v. Lyman, 6 App. Div. (N. Y.) 271, 39 N. Y. Supp. 780. An order of county authori- ties imposing a tax on the liquor traffic need not specify the particu- lar purposes for which the tax was levied where the statute under which it is imposed does not require the same in terms or effect. Parker v. Commissioners, 104 N. C. 166, 10 S. E. 137. A tax on a business of a speci- fic annual sum is not a state specific tax when it is assessed and collected locally and appropriated to local purposes, though collected un- der a general state law. Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654. An act reciting the necessity of maintaining police, and author- izing a borough for the purpose of maintaining such police to assess upon each keeper of a saloon a certain tax to be levied as other taxes in the borough has been constitutional. Durach's Appeal, 62 Pa. St. 491. Listing of persons for assess- ment of mulct tax. — In Iowa it is decided that should the assessor fail to return a list of the persons engaged in the sale of intoxicating liquor and a description of the property wherein the business is carried on, as re- quired by statute, any three citizens of the county may procure the listing of such persons and places for the purpose of assessing the mulct tax and that it is no objection to the v 174] TAXKS LKCISLATIVK I'OWKKS. 197 devoted to a purpose different from thai specified in such act. 2 And the fact that those who traffic in liquors are required to pay their tax in advance for the term of a year, while taxes on other occupations may be paid quarterly docs not violate a constitu- tional provision requiring uniformity of taxation.' 5 So the legis- lature may tax the liquor traffic, and a statute to this effect is not subject to the objection that it is not uniform in its operation because it is not levied in proportion to the business done. It is uniform where it levies the same sum upon every person engaged in the traffic. 4 Again a law imposing such a tax which operates generally throughout the state is not subject to the objection that it is a special law. 5 In taxing the liquor traffic the procedure pointed out by the statute for accomplishing this result must be strictly pursued. 6 § 174. May levy tax though traffic prohibited. A business which is prohibited may be taxed, and the fact that a business is prohibited and that no license can be obtained au- thorizing it is declared to be no defense to an action to collect the tax imposed upon one engaged in it. 7 So though under the pro- validity of the tax that the same was the husiness of liquor selling was pro- assessed, pursuant to such listing, hibited within a certain distance of after the expiration of the time to a schoolhouse and its conduct was which the tax relates. National Loan made a misdemeanor, yet that a stat- & Ins. Co. v. Board of Supervisors, ute imposing a privilege tax upon 138 Iowa 11. 115 X. W. ISO. persons selling liquor applied to one 2. Portwood v. Baskett, 04 Miss. engaged in the business in such pro- 213, 1 So. 105. hibited territory. 3. Fahey v. State, 27 Tex. App. Levying a tax not a license. — A in;. 11 S. W. 108. statute levying a tax upon the busi- 4. Youngblood v. Sexton, 32 Mich. ness of selling intoxicating liquor- i- 400, 20 Am. Rep. 654. a valid exercise of the power vested *>• Brown v. State, 73 da. 38. in the legislature and is not a viola- <>• National Loan & Ins. Co. v. tion of a constitutional provision that Board of Supervisors, 134 Iowa 527, no license to traffic in Buch liquors 111 X. VY. 1009. See State v. Cloud, shall be granted. Adler v. Whitbeck, Ala. 028. 44 Ohio St. 539, *> X. E. 672. 7. Foster v. Speed. 120 Tenn. 4 7 ' >. So a statute which merely fixes the 111 S. W. 925; holding that though amount of tax to be collected for 198 TAXES— LEGISLATIVE POWERS. [§ 174 visions of a law the carrying on of the liquor business is pro- hibited in a certain locality, yet where it is carried in such locality in violation of the law, the fact of the prohibition does not relieve from the liability to pay a tax imposed by a state law which is general in its operation. 8 And a state may make an assessment upon the traffic in intoxicating liquors although it is carried on in violation of a municipal ordinance. 9 And a con- stitutional provision prohibiting the legislature from authorizing " the grant of license for the sale of ardent spirits or other in- toxicative " does not preclude the taxing of the liquor traffic, it being declared that a tax is not a license, in either the legal or common understanding of that term. 10 But where the con- stitution provided that no license to traffic in intoxicating liquors should thereafter be granted, a statute was held to be void as being violative of such provision which was entitled, " An act more effectually to provide against the evils resulting from the traffic in intoxicating liquors " and which required the payment of a certain sum annually by every person engaged in such traffic, the execution of a bond by such a person and which further made it a misdemeanor to engage in such traffic without executing a bond or after the bond had been adjudged forfeited, it being declared that the statute was in its operation and effect a license as to a traffic prohibited by the constitution. 11 licenses to sell liquor does not au- therein, or the sale thereof be regu- thorize the granting of such licenses lated. But nothing herein shall be when not otherwise authorized by law. construed to interfere with or repeal Eodges v. Metcalfe County Court, any law in force relating to the sale 117 Ky. 619, 78 S. W. 177, 460. or gift of such liquors." Ky. Const., This was decided under the provi- § 61. sion of the Kentucky constitution as 8. Stevenson v. Hunter, 5 Ohio Dec. follows: ''The general assembly shall, 27. by general law. provide a means »• Conwell v. Sears, 65 Ohio St. 49, whereby the sense of the people of 61 N. E. 155. any county, city, town, district or *<>• Youngblood v. Sexton, 32 Mich. precinct may be taken as to whether 406, 20 Am. Rep. 654. or not spirituous, vinous or malt liq- H« State v. Hipp, 38 Ohio St. 199, uors shall be sold, bartered or loaned followed in State v. Sinks, 42 Ohio TAXES -LEGISLATIVE I'OWKUS. V.iU § IT.",] § 175. Classification by legislature — Population of cities and towns as basis. The legislature has power to classify the liquor traffic for the purposes of taxation, subject to the limitation thai the classifica- tion must be reasonable and not arbitrary, and when- it is not such it is competent for the legislature to make provisions for enforcing the payment of the tax imposed. 12 Thus it is com- ix tent for the legislature to classify cities and towns for the pur- pose of assessing the license fee or tax to be paid by those who traffic in liquor, graduating the fee or tax in proportion to the population. 13 And a general state excise law, although it grad- St. 345 which overruled State v. Frame, 39 Ohio St. 399. 12. Carroll v. Wright, 131 Ga. 728, 63 S. E. 2G0. See State v. Doherty, 3 Eda. 384, 29 Pae. 855. See also Arizona v. Connell, 2 Ariz. 339, 16 Pac. 209, wherein it is declared that the legislature may classify those engaged in liquor traf- fic to impose a license fee which dif- fers according to the different classes is valid so long as the fee is uniform as to each class. 13. Alabama. — Ex parte Marshall, G4 Ala. 266. Idaho. — Normoyle v. Latah County, 5 Ida. 19, 46 Pac. 831, construing Ida. Sees. Laws, 1895, p. 82. Minnesota. — Kelly v. City of Fari- bault, 83 Minn. 9, 85 N. W. 720, con- struing Minn. Laws, 1887, c. 5, § 2 (G. s. 1894, § 2(123). New York. — People v. Hilliard, 85 App. Div. (X. Y.) 507. 83 X. Y. Supp. 204, construing New York Liq- uor Tax Law: Matter of Lyman. 26 Misc. R. (X. Y.) 629, 57 X. Y. Supp. 869. Pennsylvania. — Commonwealth v. McGroarty, 148 Pa. St. 606, 2 f Atl. 91; Commonwealth v. Smoulter, 126 Pa. St. 137, 17 Atl. 532. Wisconsin. — State v. Keaough. 68 Wis. 135, 31 X. W. 723. A liquor law, applicable under different conditions to countries having different classes of cities, is not special or local legislation, as prohibited by the constitution, but such a classification is reasonable and natural when applied to any police measure. Board of Trustees v. Scott, 30 Ky. Law Rep. 894, 101 S. \\ . 944. Judicial notice as to popula- tion. — Where a statute provides that cities and towns shall be classified according to their population and the record in a case does not dis- close the population of a town the court will take judicial notice that a town of a certain class does not exceed the population designated for that class by the statute. Schweir- nian v. Town of Highland Park (Ky. i'. A. 1908), 11.". s. W. r,ii7. The word " borough " con- strued as used advertently in subd. 1, S 11. of the Liquor Tax Law of Xew York so as to effectuate the purpose of the legislature indi- cated by subd. 7. of S 11. oi law which increased the excise taxes one-half in cities containing a popu- 200 TAXES— LEGISLATIVE POWERS. [§ 1T6 nates excise taxes in cities according to their population but does not follow the classification of cities given in the constitution, is not a special city law and does not relate to the " property, affairs or government " of cities so as to bring it within the provisions of the constitution respecting the classification of cities and the reference of special city laws to the mayors of the cities affected thereby. 14 § 176. Taxation based on amount of business. The legislature in the exercise of its power to impose a tax upon the the liquor traffic and to classify the traffic for that pur- pose may provide that the amount of its tax is to be determined on the basis of the amount of business done and such a law is not subject to the objection that it is not uniform. 15 And a tax the amount of which is based upon the extent or magnitude of the dealer's business is not by that fact rendered a tax upon the capi- tal invested and is nevertheless a tax upon the trade or occupation of the dealer. 16 Where a tax is to be assessed upon the purchase lation of fifteen hundred thousand or over formed by the consolidation of territory situate in one or more coun- ties and containing several boroughs. People v. Hilliard, 85 App. Div. (N. V.) 507, 83 N. Y. Supp. 204. The proper proof of the popu- lation of a city, where cities are classified affording to population, is the last state or federal census. Lyman v. McGreivey, 25 App. Div. (N. Y.) 08, 48 X. Y. Supp. 1035. In Iowa it is decided that in pro- ceedings under a statute allowing the licensing of saloons in rit io^ of a cer- tain population or over upon the peti- tion of a majority of the people of the city the official register of the state is conclusive evidence as to the number of inhabitants in the city for which the petition is filed. In re Sale Intoxicating Liquors, 108 Iowa 368, 79 X. W. 260. 1-*. People v. Murray, 149 X. Y. 367, 44 X. E. 146, 32 L. R. A. 344. 15. Parish of East Feliciana v. Gurth, 26 La. Ann. 140; See Ex parte Marshall, 64 Ala. 266. A contrivance known as a " register " or " bell punch " which each dealer in intoxicating liquors is required to furnish at his own expense for the purpose of keep- ing count of the drinks sold so as to adjust the tax he is to pay may be required by statute. Albrecht v. State, 8 Tex. App. 216, 34 Am. Rep. 737. 16. Albertson v. Wallace, 81 X. C. 479. § 177] TAXES— LEGISLATIVE POWERS. L'Ul price of liquor it is not to be assessed niton the price less the amount of internal revenue tax. 1 ' § 177. Classification based on different kinds of liquors. Under a constitutional provision giving the legislature power to tax " liquor dealers " the legislature may classify different kinds of liquors and impose different taxes upon the different classes. 18 So an act entitled " An act relating to revenue and taxation, providing for license taxes on compounded, rectified, adulterated or blended distilled spirits, known and designated as single stamp spirits, and providing penalties for violations of its provisions " is not invalid in that it requires the license tax to he paid by the rectifier upon the amount of rectified spirits which he makes by blending distilled spirits known as single stamp spirits, while he is not taxed at all on rectified spirits which he makes by using double stamp spirits ; it being declared that the act was not aimed at the spirits used in rectifying but that the thing in the mind of the legislature was the business of rectifying and not the charac- ter of the spirits used. 19 17. Williams v. Commissioners, 132 N. C. 300, 43 S. E. 806. !«• Timm v. Harrison, 109 111. 593. A constitutional provision declar- ing in substance that government ought not to be for the particular benefit of any class is not violated by a statute which permits sales of cider '• by the barrel by fanners who rai>e sufficient apples to make the cider which they sell" as it does not give to farmers a privilege denied to others who raise apples, and anyone is a farmer within this meaning of this clause who has land upon which there are trees producing apples. state v. Hazelton, 7S Vt. 467, 63 Atl. 30.1. Words " spirituous, vinous, malt or other intoxicating liquors " as used in a statute im- posing a tax on such liquors are to be construed as not including non- intoxicating malt liquors. Murray v. Lafollette, 31 Ohio C. C. 247. The court said, per Laubie, J.: Here "malt or other intoxicating liquors" are coupled together. Neither spirituous, vinous nor malt is a distinct part of the sentence, but are coupled with, and their mean- ing can be ascertained only by refer- ence to the words '' or other intoxi- cating liquors," so that, * * * where all arc associated together, are combined together, they frame but one intent, purpose and meaning, and that is to levy a tax upon traf- ficking in intoxicating liquors, as specified in the title." 10. Brown-Foreman Co. v. Com- 202 TAXES— LEGISLATIVE POWERS. [§ 178 § 178. Classification of wholesalers, retailers and manufacturers. The power of the legislature to classify the liquor traffic for the purpose of imposing a tax or license fee also extends to the right to make a classification dependent on the character of the business which is carried on, such as imposing upon a wholesale dealer 20 a tax or license fee which differs in amount from that monwealth, 30 Ky. Law Rep. 793, 101 S. W. 321. The term " single stamp spirits " as used in the Kentucky statute im- posing a tax on the business of com- pounding, rectifying, adulterating or blending distilled spirits known as such is not confined to whisky but includes any distilled spirits, alco- holic and used as a beverage whether single stamped or double stamped. Bouvier Specialty Co. v. James (Ky. C. A. 1909), 118 S. W. 381. 20. Law meed not define a. wholesale dealer. A tax on wholesale dealers is not void on the ground that the law does not define what constitutes a wholesale dealer but the question whether a person is such so as to come within the meaning the law imposing the tax is one of fact to be determined like other facts. Bohler v. Schneider, 49 Ga. 195. A special tax on wholesale dealers in malt liquors is not in violation of a Constitutional provi- sion that " taxation on property shall be ad valorem only and uniform on all species of property taxed. Bohler v. Schneider, 49 Ga. 195. An ordinance which puts wholesale dealers in malt liquors in one class and imposes :i license fee or tax upon them but imposes no tax upon such dealers in wines, whiskies and other liquors, is to be construed as a classification of occupations and is not void on the ground of discrimination. Cooper v. City of Hot Springs (Ark. 1908), 111 S. W. 997. Where a statute imposing a tax upon wholesale dealers in lager heer exclusively provides that any brewery may sell the beer of its own production at wholesale with- out taking out the license provided it has paid a license as a brewery and there is no limitation in the statute as to the right to sell within the state it has been decided that the law will not be construed as requiring a brewery, which has paid the license in the county in which it is located to take out a license if it desires to sell in another county of the state. State v. Capitol Brew. & I. Co. (Ala. 1909), 50 So. 312. Liability to more than one tax. — In Georgia it has been decided that under the statute where a brew- ing company which was engaged in the manufacture of beer in that state paid the special tax imposed upon it in the county where its principal of- fice was located, it was not liable also to pay an additional tax in an- other county of the state because it stored beer in such latter county and filled orders taken by an agency located therein. Whittlesey v. Acme Brewing Co., 127 Ga. 208, 56 S- E. 299. Where there is no provision requiring a wholsaler to take out a license for selling in excess of a certain quantity a statute requir- ing licenses for sales in less than that quantity does not affect him. 178] TAXES LEGISLATIVE POWERS. 203 imposed upon a retail dealer or by statutes surrounding the ob- taining of a license or the carrying on of the traffic by the former with conditions varying from those which are applicable to the latter.- 1 In some states also manufacturers of intoxicating liquors are also put in a class by themselves or subject to conditions in connection with the right to manufacture or sell which apply to them alone.-- Again in .some states a wine grower i.~ permitted Hunter v. State, 79 Ga. 3G5, 5 S. E. 134. Where a statute requiring that a license be taken out by any person selling intoxicating liquors is general in its nature and contains no exception in favor of wholesalers, they will be subject to its provisions. State v. Cummings, 17 Neb. 311, 22 X. W. 545. See Senior v. Ratterman, 44 Ohio St. 6G1, 11 N. E. 321. A constitutional provision that " no license to traffic in intoxi- cating liquors shall hereafter be granted in this state; but. the general assembly may, by law, provide against evils resulting therefrom" applies as well to the wholesale as the retail traffic in such liquors. Senior v. Ratterman, 44 Ohio St. 661, 11 X. E. 321. 21. See Statev. Stiefel,74 Md. 546, 22 Atl. 1. State v. Schroeder, 43 Minn. 231, 45 X. W. 149: Jung Brewing Co. v. Talbot, 59 Ohio St. 511, 53 X. E. 51. When brewer subject to tax as wholesaler. — Where brewers are requested to pay a license tax to carry on the business of manufactur- ing and by another statute it is provided that wholesalers of spiritu- ous liquors and beer shall pay a tax "in addition to all other taxes," n brewer it is held must also pay the latter tax to entitle him to sell his product at wholesale. State v. Schmulbach Brewing Co., 50 \V. Va. 333, 49 S. E. 249. Where a contract between a brew- ing company and the contractee pur- ported to appoint the latter an agent of the company to sell beer shipped to him but such contract was in fact held to be a contract of sale it was decided that the contractee was liable to pay the tax and give the bond re- quired of wholesale liquor dealers. People v. Newman, 9!) Mich. 148, 57 X. W. 1073. Legislation that classifies licenses for the sale of intoxicating liquors by retail, so that those who are required to expose their places of business to view, are distinguished from other licensees, by palpable differences in the condition under which the liquor i- to be sold, is not unconstitutional. Meehan v. Excise Commissioners, 73 X. J. L. 382, 64 Atl. 689. 22. A manufacturer who sells an article manufactured by him is sub- ject to the payment of a privlege tax upon the selling of such articles a provision in the constitution thai "no article manufactured of the pro- duce of this state shall he taxed otherwise than to pay inspection fee-" exempting such article from taxation only while it remains in the manufacturers' hands. Kurtli V. Stale. Si; Tenn. 134. 5 S. YY. 593. Where a statute requires a manu- facturer to pay a tax a- a manu- facturer but he is exempt from an 204 TAXES -LEGISLATIVE POWERS. [§ 178 by statute to sell wine on his own premises without a license and is not indictable for so doing or for permitting it to be drank at such place, the object of such statute being to protect domestic makers of wine. 23 But one who manufactures wine from grapes additional tax for selling at whole- sale such exemption is based on the fact that he may sell as an ad- junct of his business but it will not be construed as giving him also a right to sell at retail as this is not a necessary part of such manufactur- ing business. People v. Greiser, 67 Mich. 490, 35 N. W. 87. A statute providing that " it shall not be lawful for any municipal cor- poration within this state to levy any tax on persons engaged in selling articles of their own manufacture manufactured within this state " does not exempt one who manufactures beer and sells the same in a beer saloon located on the same premises. City of New Orleans v. Guth, 11 La. Ann. 405. A brewer with a regular license from the United States to manufac- ture beer cannot, it has been decided in Wisconsin, established an agency for the sale of his beer in a town away from his place of business, and -ell to such persons as desire to pur- chase, without obtaining a license from the authorities of the town where the sale is made. Peitz v. State, 38 Wis. 538. In Delaware it has been decided that the law authorizes the sale by the manufacturer of liquors only on the premises, that is in the ware- house or on the premises where they are distilled. The court, however, -;iid that it did not mean to say that Buch sale must be confined exactly or precisely to the building or the dis- tillery but it must be at or in a part of the manufacturing plant. State v. McXett, 5 Penn (Del.), 334, 61 Atl. 869. Manufacturer not a whole- saler. — In Tennessee it has been decided that a manufacturer of liq- uors who sells liquors manufactured by him in unbroken packages from his place of business the article be- ing the product of the growth of the state is not a wholesale dealer in whisky under the revenue laws of that state. Taylor v. Vincent, 12 Lea (Tenn.) 282, 47 Am. Rep. 338; compare Webb v. State, 11 Lea ( Tenn. ) 662, referred to in above case and distinguished. 23. State v. Jaeger, 63 Mo. 403. See Kettern v. State, 72 Ark. 90, 78 S. W. 758; State v. Kennerly, 98 N. C. 657, 4 S. E. 47. A provision exempting wines produced from graves grown within the state while the same are in the hands of the manufacturers or pro- ducers thereof has for its object encouragement of the growth of grapes and the production of wines therefrom within the state. Douthit v. State, 36 Tex. Civ. App. 396, 82 S. W. 352. Constitutionality of such an act. — It has been decided that a statute which prohibits the sale of wine made from fruits grown in other states is not a regulation of commerce in violation of the constitu- tion provision that congress shall have power " to regulate commerce with foreign nations and among the several states." State v. Stucker, 58 Iowa 496. Compare State v. Marsh, 37 Ark. § L79] TAXES LEGISLATIVE POWERS. 205 raised by him and sells the same to consumers is within the oper- ation of a statute imposing a privilege tax on wholesale and retail liquor dealers " except manufacturers who sell to be sold again." - 4 § 179. Discrimination against liquors manufactured in other states. The legislature in exercising the power to tax the liquor traffic must not discriminate against liquors manufactured in other states. Thus a statute which discriminates by imposing a tax upon dealers in liquors by providing that such act shall not apply to liquors manufactured in the state is unconstitutional as vio- lative of the Fourteenth Amendment to the United States Con- stitution. 2 "' And a statute is void which imposes a tax upon liquors manufactured within the state for sale therein which is the same as that imposed upon liquors manufactured in other states and brought within such state for sale where no tax is de- manded of those who manufacture liquors within the state for sale in other states. 26 But a state may impose a tax on liquors 35G, holding that a similar exception in a statute was in conflict with the clause of the Constitution of the United States declaring- that Con- gress shall have power to regulate commerce with foreign nations and among the several states because it undertook to discriminate in favor of wines manufactured in thai state from its products and against wines manufactured out of the state and from grapes, wines and berries grown out of the state. And in this case it was held thai as such unconstitu- tional part could be separate! from the remainder of the act, the latter should be allowed to stand. The section construed in this act provided as follows: "Tins ad shall n held to apply to one who manu- factures and sells wines in this state, from native grapes or berries, or other fruits grown in this state and who sells no other liquors, ardent, malt, vinous or fermented. 24. Kurth v. State, 8G Tenn. 134, 5 S. W. 593. In Louisiana it has been decided thai a person who raises grapes and manufactures them into wines and sells the same either in a barroom or grocery is liable to pay a license tax therefor. Town of Mandeville v. Baudot, 49 La. Ann. 236, 21 So. 258, so holding under an ordinance im- posing a license tax for selling " liq- ours." 25. Tiernan v. Kuiker. 102 U. S. 123, 26 L. Ed. 103. -'<'>• state v. Bengsch, 170 Mo. 81, 70 S. W. 710. 206 TAXES— LEGISLATIVE POWERS. [§ 180 brought into the state for sale where such tax is of the same amount as that imposed upon liquors manufactured within the state. 27 Again where the provisions of an act are so connected that if one is void it avoids the act as an entirety one who is prosecuted for violating one of its provisions as a member of the class provided for therein may challenge its validity on the ground that one of the other provisions referring to another class is void. 28 § 180. Statutes making tax a lien. In some state the tax is made a lien upon the building and land where the traffic is conducted. Such a statute is one which it is within the power of the legislature to pass. In Iowa where a statute of this character is in force it is decided that the tax is not a charge upon the property but is assessed against the person be- cause of the business in which he is engaged and is made a lien upon the property simply to aid in its collection. 29 Hence while 27. State v. Bengsch, 170 Mo. 81, 70 S. W. 710. An act imposing a tax of fifteen per cent, upon spirituous liquors pur- chased for the purpose of sale by resi- dents of persons not residing in the state and only ten per cent, upon such ns are purchased from the maker in the state has been held constitutional on the ground that though the provi- sion of the United States Constitu- tion as to the regulation of inter- state commerce extended to the article imported while kept for sale in bulk or package the restriction was re- moved the moment the article was withdrawn from the market as a sub- ject of commerce and diverted to the importers private use, or is offered for sale in a peculiar manner, as by auction, or by hawking or peddling, or in any manner by retail. Davis v. Dashiel, 61 X. C. 114. A statute providing that upon the business of trafficking in liquors an assessment shall be paid by every one engaged therein and for each place where the business is carried on and which defines " trafficking in liq- uors " and declares that the phrase does not include the manufacture from the raw material and the sale thereof at the manufactory, by the manufacturer thereof in quantities of one gallon or more at any one time ia not a discrimination before foreign and domestic dealers as both may sell from the factory or solicit orders to be shipped from there and neither can establish places in the state where their goods can be stored and sold from without complying with the statute. Reyman Brewing Co. v. Brister, 179 U. S. 445, 44 Sup. Ct. 2G9, 21 L. Ed. 201. 28. State v. Bengsch, 170 Mo. 81, 70 S. W. 710. 20. in re Taxation Des Moines Ry. Co. 137 Iowa 730, 115 N. W. 740. See also Guedert v. Emmet County, TA X l-:S— LEGISLAT1 V E POWERS. 207 § 180] by the l;iw the tax is made a lien in this state yet it La declared to be junior to a mortgage on such property existing at the time the tax is assessed. 30 In .Montana however it is decided that the lien so created takes precedence over any mortgage upon the prop- erty. 31 And in Ohio it is also decided that a lien so created is superior to any mortgage on the property and that the fact that at the date of the mortgage no sale of liquor was ever known to have taken place on the premises is immaterial. 32 116 Iowa 40, 89 N. W. 85, wherein it is declared that though the tax is made a lien on the property yet it is not primarily a charge upon the prop- erty but is a personal obligation on the proprietor of the business the lien merely operating as an aid to its collection. Extent of lien. — Under a statute providing that the tax shall be a lien on all property, personal or real used in connection with the business it has been decided that the tax is not only a lien on the building and the land on which it stands but also on all land appurtenant to and used in con- nection therewith. Lucas County v. Leonard, 107 Iowa 593, 78 N. W. 263. Mode of enforcement.— Where by statute a tax is imposed on lands where intoxicating liquors are sold and is made a lien on the land to be enforced in the manner provided by law for the collection of ordinary taxes by a sale of the land such remedy is exclusive and a suit in equity cannot be maintained to en- force such lien. Crawford County v. Laub, 110 Iowa 355, 81 N. W. 590. 30. Smith v. Skow, 97 Iowa 640, 66 N. W. 893. 31. Burfiend v. Hamilton. 20 Mont. 343. 51 Pac. 161. 32. Pioneer Trust Co. v. Stich, 71 Ohio St. 459, 73 N. E. 520. See Foley v. Roth, 20 Ohio S. & C. P. Dec. 157, holding that such a statute insofar as it makes the tax a lien on the property where the owner has no knowledge that such traffic is being carried on there, and the premises were leased with a cov- enant against such traffic is uncon- stitutional and that an injunction will lie to restrain the making of such tax a lien. The court said, per Dicksons, J. " Under the guise of protecting the public morals and the general health the general assembly has no right to enact that which will be ut- terly destructive to private rights. The general assembly has no power to enact a law to restrain an evil- doer—when its execution will af- fect directly both the innocent and the guilty. The general assembly has no power to levy a tax in re- straint of the evils resulting from the sale of liquors which will, and which can in its enforcement, take away the property of the innocent. When the collection of such a tax does this, that part of the same which does this is illegal, unnecessary, arbitrary, un- reasonable, unjust, and therefore, un- constitutional and void. It i- easy for the legislature to re- lieve this burden by an amendment, and ] revenl the necessity of the land- owner being compelled to seek re- 2US TAXES— LEGISLATIVE POWERS. [§ 181 § 181. Disposal of taxes and license fees dependent on statute. The disposal of the money received from taxing and licensing the liquor traffic depends upon the statutes in force in each state, this being a matter depending upon legislative action, as is said in a case in "Wisconsin. The moneys derived from licenses to sell intoxicating liquors may be disposed of by the legislature in its discretion and its power in this respect is not limited by any requirement of uniformity among the political subdivisions of the state. 33 And where the statute provides that the money received from such source shall be turned over to certain officials as for instance certain officers of a city, the payment of such funds to lief by injunction from the courts — often tedious, slow and always ex- pensive. Having held that that part of the Dow tax which engrafts upon the land of an innocent owner a part thereof, is against the bill of rights, the rights of man, and therefore un- constitutional and void, it is not necessary to pass on the question of the veracity of the witnesses as to the alleged illegal sale, or on the question as to what constitutes the business of trafficking in intoxicating liquors. The prayer of the petition will be granted, and the defendants restrained from taking any further steps in or about the collection of the balance of this tax not raised by distress on the tenant's property." 33. Rock County v. City of Edger- ton, 90 Wis. 288, 03 N. W. 291. Special act not revealed by implication. — A special act pro- viding how funds received from li- censes in a certain unincorporated town shall be disposed of is not re- pealed by a subsequent act providing for the payment of all money re- ceived from licenses for the sale of liquors outside of incorporated vil- lages and cities shall be paid into other funds than the fund designated by the special act, there being no re- pealing in the general act and re- peals by implication not being fav- ored. State v. Bailer, 91 Minn. 186, 97 X. W. 670. Statute gives no vested right. — A statute providing for the pay- ment of money derived from licenses to the county treasurer to be used in defraying the pauper expenses of the county gives no vested right to the moneys in the county so that the legis- lature cannot afterwards provide for a different disposition of such funds. So a statute passed subsequently giv- ing a town or city within such a county the option of devoting the money to other purposes and legaliz- ing action already taken by munici- pal boards so doing is not uncon- constitutional even as to money col- lected prior to the passage of the act but which had not been paid over a9 until it had made a demand for the moneys so collected, the county could have no vested right of action there- for. Richland County v. Richland Center. 59 Wis. 591, 18 X. W. 497. s 1*-] TAXES— LEGISLATIVE PON EKS. 209 the officials designated may be enforced by mandamus. 84 And it has been held that a town board may bring an action to recover from a village therein moneys received for licenses and wrong- fully retained by such village. 35 § 182. Same subject continued. The doctrine that it is within the power of the legislature to designate how the moneys received from taxes and license fees shall be disposed of is illustrated by statutes providing that all or a part of such moneys shall be appropriated for the support of the poor in a certain city, town or village, 30 or be turned over to 34. Where money is due to a city from the county treasurer from the funds received by him for licenses mandamus will lie to compel such officer to pay over to the proper local officers the amount to which they are entitled under the law. East Sagi- naw v. County Treasurer, 44 Mich. 273. 6 X. W. 084. And this has been held notwith- standing the treasurer has been noti- fied by the county commissioners to hold the amount claimed towards the payment of a judgment held by the county against the city. Common- wealth v. Martin. 170 Pa. St. 118, 32 Atl. 024. In Pennsylvania it is decided that where license money is paid by the county treasurer to the supervisors who have used it upon the roads, he may nevertheless be compelled by mandamus to pay the money again to the township treasurer. Krzykwa v. Croninger, 200 Pa. St. 359, 49 Atl. 979. 35. Town of Fox Lake v. Village of Fox Lake, 02 Wis. 486, 22 X. W. 584, 36. In Wisconsin a statute provid- ing that " if any village does not under its charter provide for the sup- port of the poor therein, and the town in which such village is situated does support the poor therein " all liquor license moneys received by the village treasurer shall be paid to the town treasurer, was not intended to modify or regulate preexisting rights or lia- bilities. Winneconne v. Winneconne, 122 Wis. 34!), !)!) X. W. 1055, con- struing Stats. 1898, § 15G2. Where by a general law it is pro- vided that one-third of the taxes re- ceived by the county treasurer shall be turned over to the state and the remaining two-thirds shall belong to the town in which the traffic was carried on from which the revenue was received and by a later local law it is provided that all the moneys arising from licenses granted in a certain town belonging to it shall be de- posited with the treasurer of the poor fund of such town by the county treasurer, the latter act will be coi 3trued, tl ire being no reference to the general law in any way or any apparent intention to amend it. as meaning the two-thirds which by the general law belongs to the town and as not referring to the one-third which by such law belongs to the state. Such a construction is in con- formity with the rule as to giving ef- fect to the legislative intent, which '210 TAXES— LEGISLATIVE POWERS. [§ 182 school districts, 37 or to a city or town 3S to be applied to the pay- ment of ordinary expenditures. 39 The legislature also generally provides for the payment to the state of at least a certain propor- tion of the moneys so collected. 40 the court said was clearly as above and is also in harmony with the gen- eral law. People v. Williams, 162 N. Y. 240, 5G N. E. G25. 37. In Nebraska it has been de- cided that money received for liquor licenses issued under the state law does not belong to the school district where the business is carried on but to the county for the use of all schools within the jurisdiction of the county. State v. Fenton, 29 Neb. 348. A school district is not a municipality within the Iowa statutes providing that one-half the tax levied and collected on saloons, under the statutes shall be paid over by the county treasurer to the municipality in which the business is conducted. Township of Sheridan v. Frahm, 102 Iowa 5, 70 N. W. 721. 38. In Pennsylvania the money re- ceived by the county treasurer for licenses belongs to the different mu- nicipalities for which it is received and does not become the money of the county because it is in the cus- tody of the county treasurer. Com- monwealth v. Martin, 170 Pa. St. 118, 32 Atl. 024. Not subject to charge for collection. — In Iowa that portion of the mulct tax which a county is required by law to pay to a city is not subject to the county treasurer's charge for collection as provided by the code for moneys collected by him a- taxes due any city or town to be paid out of the same, but any addi- tional tax imposed by the city for its benefit and collected by the treasurer should pay this commission. City of Uaverly v. P>rewer Co., 126 Iowa 98, 101 N. W. 874. Right of county treasurer to retain. — Where after paying over to a village on demand the portion of a tax to which it claimed to be en- titled, the county treasurer discovers that the liquor dealer had engaged in his business before the corporate limits of the village were extended so as to embrace the portion of the township in which the business was being prosecuted when such payment was made he may retain the moneys so paid as an offset to any money due from him to the village. Grosse Pointe v. Treasurer, 85 Mich. 44, 48 N. W. 153. 39. Under a law in New York pro- viding that the excise moneys which a city or town receives " shall be applied to the payment of the ordi- nary expenditures payable from the general fund of the city or town respectively unless otherwise provided by a special or local law " it has been decided proper for a city to charge a contract for public improvement upon moneys so received during the cur- rent year where there is a deficiency in the fund upon which such contract would ordinarily be chargeable caused by the fact that the city is unable to collect taxes imposed by it. Hunt v. City of New York, 47 App. Div. (N. Y.) 295, 62 N. Y. Supp. 184. Under this same statute a resolu- tion of the board of supervisors is not a special or local law. County of Allegany v. Town of Wellsville, 90 Hun, (N. Y.) 2.3. 35 N Y. Supp. 516. 40. Constitutionality of stat- ute. — A statute has been declared not to be unconstitutional because it gives the state three-eighths of the fees § !83j TAXES LEGISLATIVE POWERS. 211 § 183. Regularity of proceeding in levying tax — presumption. That a tax was levied at a regular meeting of the board au- thorized to levy it will be presumed where that is an essential re- quirement to its validity and tin- contrary is not shown. 41 Again where the provision in a statute as to the date when the proper officials shall levy the tax is directory merely the fact that it was not levied until a later date will not affect its validity where the delay did not prejudice tho person assessed. 42 without requiring it to pay a portion of the public expenses incident to its enforcement, such obligation being held to be discharged by the state's contributions to the expense of the judiciary and the maintenance of charitable, penal, and reformatory institutions. State v. Buechler, 10 S. D. 156, 72 N. W. 114. Right of state to recover such moneys. — Where a state is entitled to the money collected by cities for liquor licenses it may recover from a city money which it has collected for such a license and has paid into its own treasury. Board of Education v. Aberdeen, 56 Miss. 518. Effect of later act conferring power on cities. — Where by statute cities and towns are required to pay into the state treasury a certain per cent, of the sum collected by them as license fees such requirement is not repealed by a subsequent enactment giving municipalities power to license and control the sale of liquors where the later act makes no provision for the disposition of the funds so en- suing. State v. Seattle, 31 Wash. 149, 71 Pac. 712. 41. Hubbell v. Polk County, 106 Iowa 618, 76 N. W. 854. 43. Hubbell v. Polk County, 106 Iowa 618, 76 N. W. 854. 212 LICENSES— NATURE OF— LEGISLATIVE POWERS. [§ 184 CHAPTEK IX. LICENSES— NATURE OF— LEGISLATIVE POWERS. Section 184. License defined. 185. Purpose of license. 186. License not a contract. 187. No vested right created by license — not property. 188. Same subject — Under New York statute. 189. License fee not a tax — uniformity of taxation. 190. Power of state to license — source of. 191. Construction of acts generally. 192. License subject to laws in force and subsequently passed. 193. Repealing acts — effect on licenses. 194. Legislature may prescribe conditions. 195. Power of legislature as to amount of fee. 196. Payment of fee and mode of. 197. Same subject continued. 198. Enforcing payment of tax or fee. 199. Right to recover fee paid. 200. Right to recover fee continued. 201. Provisions as to whom license may issue to. 202. License Laws as affecting druggists — Physicians. 203. Local boards may be authorized to regulate and license. 198. Enforcing payment of tax or fee. 199. Right to recover fee paid. 200. Right to recover fee continued. 201. Provisions as to whom license may issue to. 202. License laws as affecting druggists — physicians. 203. Local boards may be authorized to regulate & license. Sec. 184. License defined. It has been said that the popular understanding of the word license is a permission to do something which without the licensee would not be •allowed and this is also said to be the legal meaning. 1 1. Youngblood v. Sexton, 32 Mich. is prohibited. Wilkie v. Chicago, 188 406. Per Cooloy. J. 111. 453, 58 N. E. 1004; Carbondale A license i? an authority to do v. Wade, 106 111. App. 654. something which without authority A license is a permission granted §§ 185,180] LICENSES— NATUBE OF— LEGISLATIVE POWERS. 213 And this is true in respect to a license to traffic in intoxicating liquors in that such a license is a permission by a competent au- thority to engage in that traffic in some form and is essential in order to legalize its conduct and to relieve a person engaging therein from certain criminal liability which would attach in the case of its conduct by one who had obtained no license. § 185. Purpose of license. The primary purpose of a license to sell liquor is not revenue but regulation. 2 As is said in a case in Indiana, " The purpose of exacting licenses is to limit and regulate the business, for, if li- censes were not required, all persons might, under the rules of the common law, freely engage in the business, but, by imposing a restriction in the form of a license, the traffic is regulated and limited. The principle upon which the power rests is a very ancient one, and is the same as that which for hundreds of years has sustained the right to restrict the business of hawking and peddling by exacting licenses." 3 § 186. License not a contract. A license to traffic in intoxicating liquors confers no vested rights but is in the nature of a mere permit to conduct the traffic in accordance with the laws in force at the time of its issuance or by some competent authority to do In Connecticut it is decided that an act which, without such permis- in the statutes of that state there is sion, would be illegal. Adler v. Whit- no attempl to distinguish between beck, 44 Ohi<> St. 539, 558, 9 N. E. a liquor license and the certi; 672; State v. Hipp, 38 Ohio St. 20G. thereof and that the word license is " A license is essentially the grant- used interchangeably to signify the ing of a privilege to one or more per- intangible right granted and the pa- sons, not enjoyed by citizens gen- per issued to evidence the grant. erally, or, at least, not enjoyed by Quinnipiac Brew Co. v. Hackbarth, 74 a class of citizens to which the li- Conn. 392, 50 Atl. 1023. cense belongs. A common right is not "• Claussen v. City of Luverne, 103 the creature of a license." State v. Minn. 491, 115 N". W. 643. Frame. 39 Ohio St. 399. Per Mc- & Lutz v. City of Crawfordsville, Ilvaine, J. 109 Ind. 466, 10 X. E. 411. Ter El- liott. C. J. 214 LICENSES— NATURE OF— LEGISLATIVE POWERS. [J 180 such subsequent laws as the legislature in its discretion may see fit to enact. The rights and privileges of the licensee exist solely bv virtue of the law under which the license is granted and these are subject to the power of the state to subsequently further regu- late, restrict, or prohibit the traffic. The authority to grant these licenses has its origin in the police power which fact precludes the state and consequently any local governmental agency from conferring rights which cannot be subject to further legislative action and therefore licenses can not be said to possess any of the elements or qualities of a contract. 4 So in a recent case it was 4. United States.— Kresser v. Ly- man, 74 Fed. 765. Alabama. Powell v. State, 69 Ala. 10. California. — Hevren v. Reed, 126 Cal. 219, 58 Pac. 536. Colorado. — People v. Rains, 20 Colo. 489, 39 Pac. 341. Connecticut. — La Croix v. County Commissioners, 50 Conn. 321, 47 Am. Rep. 648; Le Croix v. County Com- missioners, 49 Conn. 591. Georgia. — Sprayberry v. Atlanta, 87 Ga. 120, 13 S. E. 197. Illinois.— People v. McBride, 234 111. 146, 84 N. E. 865. Carbondale v. Wade, 106 111. App. 654. Indiana. — State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313; State v. Bonnell, 119 Ind. 494, 21 N. E. 1101; McKinney v. Town of Salem, 77 Ind. 213; Nelson v. State, 17 Ind. App. 403, 46 N. E. 941. Iov:a. — Columbus City v. Cutcomb, 61 Iowa 672, 1/ N. W. 47. Kansas. Prohibitory Amendment Cases, 24 Kan. 700, 724. Maryland.— Fell v. State, 42 Md. 71, 20 Am. Rep. 83. Massachusetts. — Colder v. Kurby, 5 Gray 597. Missouri. — Higgins v. Talty, 157 Mo. 1, 57 S. W. 724; Hill v. Sheri- dan, 128 Mo. App. 415, 107 S. W. 426. New Jersey. — Meehan v. Excise Commissioners, 73 N. J. L. 382, 64 Atl. 689; Lantz v. Hightstown, 46 N. J. L. 102. Oregon. — State v. Horton, 21 Oreg. 83. " The enactment of a law placing restrictions upon the sale of intoxi- cating liquors, and requiring the pay- ment of a specified sum of money, and that a license be obtained before the business of selling can lawfully be entered upon, is not to be regarded as a proposition on the part of the state to contract for privileges, or to sell indulgences, but rather as a pub- lic pi'oclamation, announcing that the state regards the unrestricted sale of intoxicating liquors as prejudicial to the general welfare, and that in the exercise of its police power the traffic has been placed under regulation and restraint. Those who engage in the traffic, after the enactment of such a law, must be regarded as having notice from the beginning, that the power of regulation is a continuing one and that the state reserves to it- self the right to deal with the sub- ject as the special exigencies of the moment may require. They are bound § 1^7] LICENSES— NATURE OF— LEGISLATIVE POWEBS. 215 declared that a license issued by the state under a general statute to a liquor dealer is not a contract between the state and the licensee within the meaning of the contracl clause of the Federal constitution bu1 is a mere permit which may be modified, annulled or revoked at the will of the legislature. 5 And this doctrine was also declared in an early New York decision wherein it was said that licenses to sell liquors are not contracts between the state and the persons licensed giving the latter any vested rights which are protected on general principles or by the Constitution of the United States against subsequent legislation. 6 But it has been held that a license to retail spirituous liquors is a franchise, that a franchise is property and is liable to be taxed for county pur- poses. 7 § 187. No vested right created by license — not property. The control of the liquor traffic is a matter of police regulation and being such it follows that no one can obtain such a vested right in it by reason of a license that it may not be resumed when the interests of society require it. 8 And a license has none of the to know that the license or permit has no force or vitality, except as it derives from the law under which it was issued, and that if the pub- lic good requires that the law be mod- ified or repealed, no incidental in- convenience which they may suffer can stay the hand of the state. No one can acquire a vested right in the law." Moore v. City of Indianapolis. 120 Ind. 483, 492, 33 N. E. 424. Per Mitchell, J. 5. Arie v. State, (Okla. 1900), 100 Pac. 23. See also Coulson v. Harris, 43 Miss. 728. <>• Metropolitan Board of Excise v. Barrie, 34 N. V. <;:>7. 667. The court said: " They have neither the qualities of a contract nor of property, but are merely temporary permits to do what would otherwise be an offense against a general law. They form a portion of the internal police system of the State ; are is- sued in the exercise of its police powers, and are subject to the direc- tion of the State government, which may modify, revoke or continue them as it may deem fit." Per Wright, J. 7. Coulson v. Harris, 43 Miss. 7'_! v v Compare Carbondale v. Wade, lot! 111. App. (i")t. holding that a license is not a franchise. 8. Illinois. — People v. McBride, 234 111. 146, S4 X. E. 865; Schwuchow v. (i(y of Chicago, (is 111. 444. Touii. — West v. Bishop. 110 Iowa 410, 81 X. W. 696j State v. Mullen- hoff, 71 Iowa '271. 37 X. W. 329. Missouri. — Higgins v. Talty, 157 o^ LICENSES— NATURE OF— LEGISLATIVE POWERS. [§ 188 elements of property. 9 The fact that a person has paid a consider- ation for a license does not confer upon it the elements of prop- erty within the meaning of the constitutional provision that " no person shall be deprived of life, liberty or property without due process of law," there being no vested right in a license which a state may not take away at pleasure. 10 So in a recent case in Iowa it is said " a liquor license or privilege has never, we think, been held to be a property right which cannot be revoked. These privileges are revocable and may be taken away without notice or opportunity to be heard. This proposition is so plain that we shall not take the time to gather the authorities in its support." n § 188. Same subject — Under New York statute. Under the law in Xew York the rule prevails that a liquor tax certificate constitutes a species of property transferable by the party procuring the same; that the privilege or right which it Mo. 1, 57 S. W. 724. Neiv Hampshire. — State v. Holmes, 38 N. H. 225. New York. — Metropolitan Board of Excise v. Barrie, 34 N. Y. 657. Texas. Rowland v. State, 21 Tex. App. 418. But see Adams v. Hackett, 27 N. H. 289, 59 Am. Dec. 376; But see State v. Bradish, 95 Wis. 205, 207, 70 N. W. 172. Right not an accrued right.— A permit to a pharmacist to sell spir- ituous or intoxicating liquors is not an accrued right within the meaning of a code provision that " the repeal of a statute does not * * * affect any right which has accrued * * * under, or by virtue of the statute repealed." State v. Mullenhoff, 74 Iowa 271, 37 N. W. 329. »• United States. — Cook Brewing Co. v. Garber, 108 Fed. 042. 948; Kresser v. Lyman, 74 Fed. 765. California. Hevren v. Reed, 126 Cal. 219, 58 Pac. 536. Connecticut. — La Croix v. County Commissioners, 49 Conn. 591. Illinois. — Carbondale v. Wade, 106 111. App. 654. Indiana. — Moore v. Indianapolis, 120 Ind. 483, 22 N. E. 424. Iowa. — McConkie v. Remley, 119 Iowa 512, 93 N. W. 505; McCoy v. Clark, 104 Iowa 491, 73 N. W. 1050. Missouri. Higgins v. Talty, 157 Mo. 280, 57 S. W. 724. New Jersey. — Voight v. Board of Excise, 59 N. J. L. 358, 36 Atl. 686, 37 L. R. A. 292. New York. — Metropolitan Board of Excise v. Barrie, 34 N. Y. 657. Oregon. — State v. Horton, 21 Oreg. 83, 27 Pac. 165. 10. Martin v. State, 23 Neb. 371, 36 N. W. 554; Krueger v. Colville, 49 Wash. 295, 95 Pac. 81. 11- McConkie v. Remley. 119 Iowa 512, 93 N. W. 505. Per Deemer, J. § 189] LICENSES— NATURE OF— LEGISLATIVE POWERS. 217 confers upon the holder cannot be revoked except in the manner and for the causes prescribed in the statute and that the holder may invoke the general rules of law for the protection of prop- erty in any proceeding having for its object the forfeiture and destruction of the right which the certificate confers. 12 The liquor tax certificate being valid when issued the licensee is entitled to traffic in liquors during the time for which the certificate was granted and in the absence of any provision by the legislature authorizing or requiring its revocation, his right is complete and perfect and cannot be interfered with. 13 But while liquor tax certificates have characteristics and value which did not attach to excise licenses under the former statutes, they are " property " only in a qualified and restricted sense. 14 The certificate confers certain rights for the term of one year, only upon the condition which is an implied one that the statute remains in force for that period. 15 § 189. License fee not a tax — uniformity of taxation. A statute exacting the payment of a sum called a tax, and also the giving of a bond, as conditions precedent to the right to en- gage in the sale of intoxicating liquors, is an exercise of the police power rather than a tax law in the proper sense. 16 And the uni- 12. Matter of Lyman, 160 N. Y. 96, Flynn, 48 Misc. R. (X. Y.) 159, 96 54 X. E. 577, cited in Matter of Cull- N. Y. Supp. 653. inan, 82 App. Div. (N. Y.) 445, 81 1G. People v. Murray, 149 N. Y. \. Y. Supp. 567; See also Matter of 367, 44 N. E. 146. 32 L. R. A. 344. Cullinan, 94 App. Div. | V Y.) 445, The court said in this case: "The 88 N\ V. Supp. 164; Matter of Hil- claim that the act of 1896 is a tax Haul. -J.") App. Div. ( N. Y.) 222, 49 law. having for its primary purpose N. V. Supp. 286. Matter of Living- the raising of revenue for the support ston. 24 App. Div. (N. Y.) 51, 48 of government, involves the theory X. Y. Supp. 989. that the legislature in enacting it in- 13. Matter of Hilliard, 25 App. Div. tended to depart from the principle (N. Y.) 222. 49 X. Y. Supp. 286. upon which all excise laws have hith- 1-*. People ex rel Laughran v. erto been founded. That principle Flynn, 48 Misc. R. (X. V. i 159, 96 lias 1 a by exaction and restriction X. Y. Supp. 653. to limit a dangerous traffic in the 15. People ex rel Laughran v. interests of social order and the pub- 218 LICENSES— NATURE OF— LEGISLATIVE POWERS. [§ 189 formity of taxation provided for by the constitution of a state does not operate to deprive the legislature of power to classify occupations for the purposes of taxation and the legislature may lie welfare. It is probably compe- ent for the legislature to tax occupa- tions or business as a source of rev- enue and it could tax the liquor traf- fic for this purpose. The selection of the subjects of taxation rests with the legislature and the imposition of a license fee for revenue on a bus- iness or occupation is an exercise of the power of taxation. * * * But an exaction imposed as a condition of the right to carry on a business dangerous to public morals or which may involve public burdens, by way of discouragement or regulation, is not in any proper sense a tax. It does not proceed upon the principle upon which taxes are levied and upon which taxation is justified, viz., the protection afforded by the govern- ment to the taxpayer. The imposition is made in such cases generally for a double purpose, to discourage the bus- iness and to secure indemnity in part to the public from the losses and bur- dens which the business is likely to entail. The so-called excise tax is for the protection of the community and not for the protection of the person from whom it is exacted. * * There can be no doubt that a large revenue will result from excise taxes imposed by the act of 1896 nor that this was contemplated by the legisla- ture. But this will be a consequence of the system, and was not the mo- tive of its adoption. It was mani- festly not the intention of the legis- lature to encourage the traffic, but to control, restrict and regulate it, and by the local option provision it is rendered possible that it may be wholly prohibited in every town in the state, a provision quite incon- sistent with a purpose to encourage the traffic or to make it an ordinary source of revenue. The fact that the exaction is in the act denominated a tax is not conclusive. All exactions imposed upon cities by public au- thority are in a general sense taxes whether imposed for regulation or revenue. The character of the act of 1896, whether a tax law in a proper sense, or a law enacted under the police power, must be determined from its whole scope and tenor, and there can be no reasonable doubt we think that it is of the latter character. It is radically different in some re- spects from the excise laws which it supersedes. But the changes are in the administration of the entire sys- tem and not in its essential character The most noticeable changes are: ( 1 ) State supervision in place of su- pervision through boards of excise and (2) the opening of a traffic to all citizens (with certain exceptions) who shall pay the license tax and give the bond required. The payment of the tax and the giving of the bond are conditions precedent to the right to engage in the business, and the impositions of conditions precedent is the distinguishing test of a license law." Per Andrews, C. J. See also Henry v. State, 26 Ark. 523; Pleuler v. State, 11 Neb. 547, 10 N. W. 481. " A license fee is not a tax imposed upon a citizen nolens volens. He is not compelled to apply for a license, or to take one if the licensing board are willing to grant him one. If he takes it, he takes and holds it sub- ject to the conditions imposed by law." McGinnis v. Medway, 176 Mass. C7, 57 W. E. 210. Per Hammond, J. § 190] LICENSES— NATURE OF— LEGISLATIVE POWERS. 219 in the exercise of the general powers possessed by it requir< a license of those engaged in the liquor traltic or it may elas those engaged in such traffic and require a different license fee from the different classes. 17 So in a case where this question was raised the court said: "No one can doubt (who reads the act in question) that the intention of the legislature, in its passage, was to regulate a traffic which was believed by them to be pernicious in its effects upon society, and not for the purpose of raising revenue. The principal object was to regu- late such traffic, not to raise revenue. The constitutional pro- vision in regard to equality and uniformity of taxation, has reference solely to 'taxation' pure and simple, acording to the commonly accepted meaning of that term, for the purpose of revenue only. It does not apply to those impositions made under the police power of the state as a means of restraining and regu- lating a business that may be regarded as evil in its effects upon society." 18 § 190. Power of state to license — Source of. The power of the state to regulate the liquor traffic by a licens- ing system is generally recognized. Statutes of this character violate no constitutional right of the individual and are within the power of the legislature to pass in the absence of some direct constitutional limitation in this respect. The power is exercised for the purposes of regulation and its origin is in that broad power inherent in the state which is known as the police power. 19 The 17. Idaho. — State v. Doherty, 3 1S - State v. Doherty, 3 Ida. 3S4. Ida. 384, 29 Pac. 855. 389, 29 Pac. 855. Per Sullivan. C. J. Illinois. — Livingston v. Board of * ! >- United States — Crowley v. Trustees, 99 til. 564. Christenson, 137 U. S. 86, 11 Sup. Ct. Indiana.— Thomasson v. State, 15 13, 34 L. Ed. 620. Ind. 449. Arkansas. Henry v. State. 2H Ark. Missouri. — State v. Hudson, 78 Mo. 523. 302. Connecticut. — State v. Gray, i'.I South Dakota.— State v. Bueehler, Conn. 39, ->'2 Atl. 675; La Croix v. 10 S. D. 156, 72 N. W. 114. County Commissioners, 49 Conn. 591. 220 LICENSES— NATURE OF— LEGISLATIVE POWERS. [§ IQQ requirement by statute that a person shall take out a license before engaging in the business of selling liquors is not invalid as deny- ing to a person due process of law, 20 and does not conflict with any provision of the Constitution of the United States. 21 Upon this question of the power of the legislature to require a license as a condition precedent to the right to carry on the liquor traffic it is said in a case in Xew York: "The legislature is the de- pository of the sovereign power of the people, and in exercising Georgia. Sprayberry v. Atlanta, 87 Ga. 120, 13 S. E. 197. Indiana. — Sopher v. State, 169 Ind. 177, 81 N. E. 913. Haggart v. Steh- Hn, 137 Ind. 43, 35 W. E. 997, 22 L. R. A. 577 ; Thomasson v. State, 15 Ind. 449. Kentucky. — Commonwealth v. Fow- ler, 96 Ky. 166, 28 S. W. 786, 33 L. R. A. 839. Louisiana. — State v. Boston and Pickwick Club, 45 La. Am. 585, 12 So. 895, 20 L. R. A. 185. Maine. Lunt's Case, 6 Me. 412. Maryland. — Kellar v. State, 11 Md. 525. Minnesota. — Claussen v. Luverne, 103 Minn. 491, 115 N. W. 543. Mississippi. — Schulherr v. Bor- deaux, 64 Miss. 59, 8 So. 201. Missouri. — State v. Searcy, 20 Mo. 489. Nebraska. — Hunzinger v. State, 39 Neb. 653, 58 N. W. 194; State v. Hardy, 7 Neb. 377. Xew Hampshire. — Pierce v. State, 13 N. H. 536. \< a- York. — People v. Bashford, 128 App. Div. 351, 112 N. Y. Supp. 502; [ngersoll v. Skinner, 1 Den. 540. Ohio. — Anderson v. Brewster, 44 Ohio St. 576; !) X. E. 683. Pennsylvania. — Boyle's License, 190 Pa. St. 577, 42 Atl. 1025, 45 L. R. A. 399. Sou/li Dakota. — Burke v. Collins, 18 S. D. 190, 99 N. W. 1112. West Virginia. — Ward & Co. v. County Court, 51 W. Va. 102, 41 S. E. 154. License statutes are restric- tions. — Statutes commonly spoken of as license laws are not, strictly speaking, grants of special priv- ileges but rather restrictions upon the exercise of a previously existing right as in the absence of any con- stitutional or legislative prohibition of a restriction upon the traffic any person may engage therein. State v. Roberts, 74 N. H. 476, 69 Atl. 722. Different license statutes should be so construed as to give effect to both or all if possible. Shiflett v. Grimsby, 104 Va. 423, 51 S. E. 838. Statute not given retroactive effect. — It has been decided that a statute, whether construing it liter- ally or according to the circum- stances and principles of construc- tion, which provides for the obtain- ing of permits for the opening of a saloon will not be construed as ap- plying to persons by whom permits had been obtained prior to the en- actment of the statute at the places authorized by such permits. State v. Grunewald, 123 La. 527, 49 So. 162; State v. Lewis, 123 La. 539, 49 So. 167. 20. Carroll v. Wright, 131 Ga. 728, 63 S. E. 260. 21. Ingersoll v. Skinner, 1 Den. 540. g 191] LICENSES— NATUEE OF LEGISLATIVE POWERS. 221 it to subserve the public good, prohibits the Bale of intoxicating liquors in small quantities, excepl by license; subjecting all of- fenders to forfeitures and criminal punishment. At the same time provision is made for licensing or permitting persons to carry on the retail trade under certain regulations. Without license, and in defiance of the law, the traffic is carried on, and those engaged in it claim to be guiltless" of any offense, beca the statute is void. Why void \ It is within the scope of legis- lative power, for that is general and unlimited and extends to all subjects of legislation, except in those particulars wherein it is expressly restrained by the Constitution. A law prohibiting the indiscriminate traffic in intoxicating liquors and placing the trade under public regulation to prevent abuse in their sale and use, violates no constitutional restraint. Is it not an absurd proposi- tion, that such a law by its own mere force deprives any person of his liberty or property, within the meaning of the Constitution or that it infringes upon either of these secured private rights ? " 22 § 191. Construction of acts generally. An act of the legislature will not be held to operate retrospec- tively unless the legislative intention that it shall have such oper- ation be clearly shown by its terms. 23 And in construing an act as to licenses the context, should be looked at and the surround- ings and also the evil intended to be remedied, and the end to be accomplished should be considered. 24 Thus an act providing in the same section that no licenses shall be granted outside of in- corporated cities and towns and that it shall be unlawful to sell 22. Metropolitan Board of Excise perhaps would not at this time except v. Barrie, 34 N. Y. G57, Giiii. Per as emboldened by the inconsiderate Wrightj J. dicta of some of the judges in the case See note 7 N. Y. Ann. Rev. Ed. of Wynhamer v. People, 13 N. Y. 800. The court also saiil in this case: 378." "No one has heretofore questioned 23. Watts v. Commonwealth, 7s on constitutional grounds the validity Ky. 329. of such an enactment, or called upon 24. State v. Cofield, 22 S. C. 301. the judiciary to declare it void, and 222 LICENSES— NATURE OF— LEGISLATIVE POWERS. [§ 192 intoxicating liquors without a license is not to be construed as per- mitting the sale in such cities and towns without a license but the latter part of the section forbidding sales without a license is to be construed as applying to the entire state. 25 § 192. License subject to laws in force and subsequently passed. One who takes a license from the state or a municipality takes it subject to such valid laws as may be in force at the time of it's issuance or which may be subsequently passed by the legislature in the exercise of its police power. 26 So a licensee was held after the passage of an act making it an offense to sell intoxicating liquors to a person in the habit of becoming intoxicated, liable to the provisions of such act. 27 And where a license law is re- pealed by a subsequent enactment the privileges granted by the former law are revoked upon the subsequent one taking effect. 28 25. State v. Cofield, 22 S. C. 301. 26. Horning v. Wendell, 57 Ind. 171; People v. The Warden, 6 App. Div. (N. Y.) 520, 39 N. Y. Supp. 582; Commonwealth v. Donahue, 149 Pa. St. 104, 24 Atl. 188; Common- wealth v. Sellers, 130 Pa. St. 32, 18 Alt. 541, 542. Sales on specified days forbid- den.— Payment of the liquor tax for the ensuing year does not exempt the dealer from the operation of a subse- quent law passed during the year for- bidding the sale of liquor on specified days, as the state does not by the pas- sage of a statute taxing the liquor traffic preclude itself from passing further laws affecting the traffic. Reithmiller v. People, 44 Mich. 280. Statute increasing license fee — Reasonable time to comply witb.— In Texas it has been decided that where a statute is passed in re- spect to the granting of licenses and increasing the license fee and which provides " all laws and parts of laws in conflict with this act are hereby expressly repealed " does not have the effect of immediately revoking all licenses granted under a prior statute but that the licensee, under such law have a reasonable time, in which to comply with the new act, during which time they may continue in bus- iness under the old licenses. Ex parte Vaccarezza, 52 Tex. Cr. 105, 105 S. W. 1119. 27. Hedges v. Titus, 47 Ind. 145. 28. Pleuler v. State, 11 Neb. 547, 10 N. W. 481. Does not impair obligation of contract. — Where a license was granted for a year and a few months thereafter a law went into effect which declared such license void be- fore its termination and required that a liquor tax certificate be taken out by the licensee and a tax paid, it was decided that such act was not void in that it impaired the obliga- tion of a contract. Kresser v. Ly- man, 74 Fed. 765. § 1{)3] LICENSES— NATURE OF— LEGISLATIVE POWEBS. 223 So a permit to pharmacists to sell liquors is terminated by a re- peal of the law granting such right. 29 And where the statute in one section forbids the sale of intoxicating liquors except so far as one may be authorized to in the manner provided by the act, making certain except ions as to the application of the act, and in another section provides for the granting of licenses to sell, an act declaring that licenses shall have no validity after a certain date, operates as a repeal of the section as to license and leaves the general prohibition in force. 30 § 193. Repealing acts — effect on licenses. The rights of the licensee to continue his business to the end of the term is of course recognized where the repealing act contains a clause to the effect that it is not intended thereby to affect li- censes already in existence. 31 An act which also contains nothing therein either expressly or impliedly to show an intent to revoke or annul the licenses granted under an earlier act will not be con- strued as having the effect of repealing the prior law but under a law of this character the license will continue in force until the expiration of the term for which it was granted. 32 Thus where Use of bar fixtures. — A liquor 31. Lehritter v. State, 42 Ind. 482. seller has no right to continue the 32. Bush v. District of Columbia, use of his bar fixtures for the sale of 1 App. Cas. (D. C. ) 1 : Him v. State, liquor because he can put them to no 1 Ohio St. 15; Davis v. State, 2 Tex. other use as to hold otherwise would App. 425; Sop also State v. Andrews, be equivalent to holding that the law 28 Mo. 14: State v. Andrews. 26 Mo. cannot be changed so as to deprive 172; Adams v. Hackett. 27 N. II. 2S!I, him of bis license or the right to con- 59 Am. Dec. 370. tiiuie the business. The seller in such The doctrine that a general a case in providing bar fixtures to affirmative statute does not re- earry on his business of selling liquor peal a prior particular statute, under a license, assumes the risk or particular provisions of a prior that the business may bo made un- statute unless negative words are used lawful People v. McBride, 234 111. unless there be an ireconcilable re- 146, 84 N. E. 865. pugnancy between the two, has been 2J>. State v. Mullenhoff. 74 Iowa. applied where a license statute ex- 271, 37 N. W. 329. empted the manufacturers of wines 30. Commonwealth v. Brennan, 103 from fruits grown within the state Mass. 70. from its provision and a subsequent 224 LICENSES— NATURE OF— LEGISLATIVE POWERS. [§ 193 a general statute as to granting licenses can be construed as bavin-,' reference to otber classes of business tban intoxicating liquors it will not operate as a repeal of statutes especially pro- viding for tbe granting of licenses for tbe sale of intoxicating liquors. 33 And where an act by its operation repeals a prior act so far as such act conferred power to grant licenses in the future but does not by express language revoke or annul outstanding li- censes, such effect will not be given to it by implication. 34 But where two acts of the general assembly in reference to the granting of licenses are in irreconciliable conflict, the act last enacted will be regarded, there being no express words of repeal, as repealing by implication the earlier act. 35 So a statute providing for the license law was passed which con- tained no exemption in favor of such manufacturers. Chamberlain v. State, 50 Ark. 132, 6 S. W. 524. Upon the question of the re- peal of an act it is a principle that the purpose and intention of the legislature may be obtained from its dealing with that act, by legisla- tion affecting it had subsequent to the statute by which it is claimed to have been repealed. People v. Smith, 69 N. Y. 175. Where an act providing for the re- peal of all laws authorizing the issu- ing or granting of licenses from and after the passage of the act, further provides in a subsequent section that the act shall take effect on a certain date provided that if a majority of the ballots to be deposited as provided therein are against prohibition then it shall be of no force and effect whatever, the hitter section will be regarded as prevailing over the former which will not be construed as repealing the license laws until the measure has been adopted by a vote of the people. Zavresseller v. People, 17 111. 101. In New York the act of 1845 relat- ing to excise did not repeal the pro- visions of the revised statutes making it penal and indictable to sell strong and spirituous liquoTS without a li- cense, in the towns where the electors had voted against such licenses. Peo- ple v. Townsey, 5 Den. (N. Y.) 70. 33. Walter v. State, 105 Ind. 589, 5 N. E. 735. 34. Hirn v. State, 1 Ohio St. 15. 35. State v. Monger, 111 N. C. 675, 16 S. E. 229. Where at the time a law is in force which classifies liquor dealers among vendors of merchandise and making them subject to assessment as such, another law is passed to regulate the sale of intoxicating liquors and imposing a license and the latter act shows no intention to render such dealers subject to the payment of both the assessment and the license fee, the former act so far as it affected such persons will be regarded as re- pealed, it being declared that though the legislature has power to impose such a burden on liquors, the inten- tion to do sri must be clearly manifest. Commonwealth v. Brewing Co., 146 Pa. St. 642, 23 At 1. 384. Where an act is passed which pro- § 194] LICENSES— NATUEB OF— LEGISLATIVE POWERS. 225 licensing of the salt- of intoxicating liquors and which prohibits their sale without a license repeals by implication a previous stat- ute prohibiting the sale of such liquors absolutely. 36 And where a general law is passed which is entirely inconsistent with a local option act in reference to the granting of licenses by a county and the amount of the fee, such act will be regarded as repealed by implication. 37 § 194. Legislature may prescrible conditions. The legislature in the exercise of its power to control and regu- late may annex any conditions in regard to the issuance of licenses or the exercise of the rights conferred by a licensee which in its discretion it may deem proper. 38 Thus the legislature may pro- vide that the number of licenses issued shall not exceed a certain proportion to the population, 39 or it may require that the appli- cant shall obtain the consent of, or that his application or petition shall be signed by, a certain number of persons of a specified class vides what the annual tax shall be and for its payment to the state, such act supersedes a prior statute fix- ing the price for license and invest- ing the country authorities with power to exact such further sura as they may in their discretion deter- mine. Drew County v. Bennett, 43 Ark. 3G4. 36. Cullen v. State, 42 Conn. 55. 37. Bergmeyer v. Greenup County, 19 Ky. Law Rep. 1599, 44 S. YV. 82. 38. Sasser v. Marl in, 101 Ga. 447, 29 S. E. 278: People v. Meyers. 95 N". Y. 223, citing Board of Excise v. Barrie, 34 N". Y. 657. See also Chapters VI and XI herein. 39. A license statute regulating the sale of intoxicating liquors which provides that the nuraher of licenses granted shall not exceed one for each five hundred inhabitants, has been held not to apply to an act in refer- ence to the granting of licenses to social clubs to sell liquors to their members though the former may con- tain a provision excepting druggists from its operation, it being declared that in the construing the two acts to- gether there were many provisions in the general law not at all appli- cable to clubs: that the act as to clubs was complete in itself and that in no way did there appear an intent to have such act apply to clubs in this respect. Greenough v. Board of Police Commissioners, (R. I. 1909), 71 Atl. 80G. Number of places in a city or town. — A statute limiting the num- ber of licensed places within the territory of a city or town is con- stitutional. State v. Board of Com- missioners, (Wyo. 1909), 105 Pac. 295. 226 LICENSES— NATURE OF— LEGISLATIVE POWERS. [§ 194 such as property owners, 40 householders, 41 voters, 42 citizens, 43 or residents. 44 Conditions also in regard to the building or locality in which the traffic may be authorized by license may properly be imposed by the legislature. 45 So statutes in many cases impose certain conditions or requirements in connection with the place where the business is to be carried on and where such conditions are imposed a license should not be granted for a place which does not conform to such requirements. 46 Thus the state may forbid the granting of a license to conduct the liquor traffic in a dwelling house, 47 or within a certain distance of a school, church, or a charitable or public institution. 48 And a statute is constitutional 40. Ex parte Christenson, 85 Cal. 208, 24 Pac. 747. See Chapters VI and XI herein. 41. New Orleans v. Macheea, 112 La. 559, 36 So. 590. 42. Swift v. People, 62 111. 534, 44 N. E. 528, 33 L. R. A. 470; Groesch v. State, 42 Ind. 547. 43. in re Ruth, 32 Iowa 250. 44. In re Hoover, 30 Fed. 51. 45. See chapters VI and XI herein. Where by the laws of the state the sale to white and colored people in the same building is prohibited, one who seeks to conduct a saloon for each class, must, in the absence of a statute to the contrary, obtain a li- cense for each saloon. State ex rel. Tax Collector v. Falkenheiner, 123 La. 617, 49 So. 214. 46. McAloon v. License Commis sioners, 22 R. I. 191, 46 Atl. 1047 State v. Conley, 22 R. I. 397, 48 Atl 200. See also Commonwealth v. As bury. 104 Ky. 320, 47 S. W. 217 Martz's License, 12 Pa. Super Ct r,21. 4T. Commonwealth v. McCormick, 150 Mass. 270, 22 N. E. 911, holding that a license to sell liquors in a one and a half story house used partly as a dwelling and partly as a shop was void. 48. See chapters VI and XI herein. Thus it may require that the place where the traffic is carried on shall not be within a certain distance of a church, or schoolhouse Warren Street Chapel v. Excise Commissioners, 56 N. J. L. 411, 29 Atl. 150, holding that the prohibited distance must be measured by the nearest mode of ac- cess. And where the sale of liquors within a certain distance of a desig- nated church was prohibited and such church was completed it was held that it was immaterial that the build- ing was not actually being used as a church. Jones v. Commissioners, 106 N. C. 436, 11 S. E. 514. But the mere fact that a church owns land upon which church foun- dations have been laid within the pro- hibited distance of the place for which a certificate is sought does not bring such place within the prohibition. People v. Lammerts, 18 Misc. R. (N. Y.) 343, 40 N. Y. Supp. 1107. "What constitutes " same street ". — Different portions of what is substantially the same street con- stituting practically a straight thor- oughfare, though laid out at differ- ent times and called by different names constitute the " same street " § 191 LICENSES— NAT! UJJ OF U'J . ISI.ATIYE I'OWKliS. 2-27 which forbids the granting of a license for the sale of Liquor in less than a certain quantity in connection with a grocery or other mercantile business. 49 It is also within the power of the legisla- ture to provide that a licensee shall post his license in a con- spicuous place in his place of business. 60 § 195. Power of legislature as to ammount of fee. The state may properly restrict that which is dangerous, if unregulated, to public morals or security, by the requirement of large license fees and it is immaterial whether the licenses re- quired are by way of regulation or for the purposes of revenue. 51 within a statute prohibiting the sale of liquors within a certain distance of a public school situated on the " same street." Commonwealth v. McDonald, ICO Mass. 528, 36 N. E. 483. Provisions should be liberally construed. — Exceptions contained in a liquor license law in respect to churches and schools should be liber- ally construed in their favor and strictly against applicants for li- censes within the prescribed dis- tances. In re Herring (X. Y. App. Div. 1900), 117 N. Y. Supp. 747. So it said that in construing a stat- ute prohibiting the maintenance of a sali Km within a certain distance of a school : " In view of its obvious pol- icy in protecting the school against tin- evil inlluences of the saloon, the statute should be so expounded as to accomplish its benign intent, and to that end be accorded a literal or a liberal interpretation as may most effectually avert the apprehended mis- chief." People v. Murray. 5 App. Div. (X. Y.) 441, 38 N. Y. Supp. 609, 39 X. Y. Supp. 1130. Per Piyor, J. Act applicable to one educa- tional institution only held un- constitutional.— in Missouri an act providing that " no dramshop license shall hereafter be granted to any per- son to keep a dramshop within five miles of any state educational insti- tution which now has enrolled fifteen hundred or more students " was held to be a special and local law in vio- lation of the constitution it appear- ing that there was only one state university to which the law applied at the time it Avent into effect and the law by its terms being limited to such localities as then had institu- tions of learning with such an en- rollment and not capable of even ap- plying to other portions of the state. State v. Turner, 210 Mo. 77, 107 S. W. 10G4. i!>. Peer v. Excise Commissioners, 70 X. J. L. 496, 57 At I. 153. 50. Schwartz v. State, 32 Tex. Cr. 387, 24 S. W. 28. 51. Appeal of Allyn, (Conn. 1909), 71 Atl. 794. The legislature has a very large discretion in the matter of the imposition of licenses and where it is in the exercise of the police power, in the regulation of a business thai is regarded as pernicious to the public it has the sole discretion as to the sum to be charged as a license, 228 LICENSES— NATURE OF— LEGISLATIVE POWERS. [§ 196 In this connection it is said by the United States Supreme Court that the liquor traffic " may be controlled and regulated by the imposition of license taxes by which those only who obtain licenses are permitted to engage in it. Taxation is frequently the very best and most practical means of regulating this kind of business. The higher the license, it is sometimes said, the better the regula- tion as the effect of a high license is to keep out from the business those who are undesirable and to keep within reasonable limits the number of those who may engage in it." 52 § 196. Payment of fee and mode of. As a general rule it is a condition precedent to the issuance of a valid license that the fee therefor shall be paid in advance. 53 A license issued on credit, and without authority to so issue it, is although the license might operate as a prohibition against the business. Coper v. City of Elizabethtown, 30 Ky. Law Rep. 706, 99 S. W. 608. There is no limit to the discre- tion of the legislature over the matter of licensing or not licensing the traffic in liquors or the conditions upon which it may make the granting of a license dependent. Schulherr v. Bordeaux, 64 Miss. 59, 8 So. 201. A brewery which has paid a li- cense to manufacture and sell not exceeding a certain number of bar- rels per day and which on one day in the year manufactures a number of barrels in excess of that author- ized by the license is subject to the payment of the higher license fee required by the statute where the production exceeds such num- ber, even though the average per day for the year is within the num- ber permitted by the license. Ger- maina Brewing Co. v. Rutledge, (S. C. 1009), 65 S. E. 230. 52. Phillips v. Mobile, 208 U. S. 472, 479, 28 Sup. Ct. 370. Per Mr. Justice Peckham. 53. Arkansas. — Hencke v. Standi- ford, 66 Ark. 535, 52 S. W. 1. Indiana. — Ristine v. Clements, 31 Ind. App. 338, 66 N. E. 924. Michigan. — Doran v. Phillips, 47 Mich. 228. Mississippi. McWilliams v. Phil- lips, 51 Miss. 196. Nebraska. — Fry v. Kaessner, 48 Neb. 133, 66 N. W. 1126. New Mexico. — Sandoval v. Meyers, 8 N. M. 636, 45 Pac. 1128. Oregon. — McLeod v. Scott, 21 Oreg. 94, 26 Pac. 1061, 29 Pac. 1. Compare Storms v. Commonwealth, 105 Ky. 619, 49 S. W. 541, wherein it has been decided that where a license is issued by the county court with- out the payment of the fee by the li- censee, the latter is protected thereby and that it would seem that the clerk issuing the license would be respon- sible for such amount as he ought to have collected and that the li- cense would owe him that sum. § 11)71 LICENSES— NATURE OP— LEGISLATIVE POWERS. 229 held not to be voidable merely but void in the sense that it may be assailed even in a collateral proceeding. 54 And liquor licenses as well as taxes and other public charges are payable in money, unless provision is made by statute for their li [nidation in some other manner or by some other means. 66 In Oklahoma however it has been held proper to make payment for a liquor license to a county treasurer with county warrants which have been regis- tered and not paid for want of funds. 50 But a tender of the cer- tificate of the police commissioners, whose office is created by law, and which provides that their certificates of indebtedness shall be received in payment of all city taxes, in payment of a license, is not a sufficient tender, a license fee not being a tax. 57 § 197. Same subject continued. Where the payment of a license fee is required to be made in advance and there is no provision by statute or otherwise as to payment in other than money the officials charged with the duty of issuing the license have no authority to accept a note in pay- ment and where one is so given it is held in some cases to be with- out consideration and void. 68 A municipal corporation may how- ever, under a sufficiently broad delegation of power to it accept a note upon the issuance of a license and collect the same. Thus in Alabama it has been decided that a municipal corporation having general power to contract, and be contracted with, in reference to municipal affairs and being expressly authorized "to provide for licensing and regulating retailers of liquors within its limits and to fix the sum to be paid " therefor, may take a note for the price of a license, instead of requiring cash and on failure to pay the B4. Zielke v. State, 42 Neb. 750, GO <"»7. City of East St. Louis v. Weh- N. W. 1010. rung, 46 111. 302. •-.•-.. Lee t. Roberts, 3 Okla. 10G, 41 ^ Hencke v ' Standiford, 06 Ark. 535. 52 s. YV. l ; Ristine v. Clem- 595 " outs. 31 [nd. App. 338, 66 X. E. 924. 56. Lee v. Roberts, 3 Okla. 106, 41 Doran v. Phillips. 47 Midi. 228; City Tac. 595. of Craig v. Smith. 31 M<>. App. 2S6. 230 LICENSES— NATURE OF— LEGISLATIVE POWERS. [§ 198 note, may maintain assumpsit against the maker. 59 And in Ken- tucky it has been decided that a city of the fifth class has au- thority under its charter to accept notes in payment of license fees and may enforce their collection. 69 And in Georgia it has been held that though an official is only authorized to receive cash for a license yet if he receives part in cash and a note for the bal- ance and the maker has received his license such note is collecti- ble. 61 In Mississippi it is decided that where notes are so taken the official receiving them in payment is liable for the amount of the fee. 62 § 198. Enforcing payment of tax or fees. There are several cases in which it has been decided that a license tax is not a penalty but in the nature of a debt which the state, county or city, to which it is payable may recover in a civil action. 63 On the contrary, however, it is said that a person owes nothing for a license until he has taken it out and that where a person engages in the liquor traffic without taking out the required license he does not thereby become indebted for the amount of such license. 64 So in a late case in Georgia it is decided that whether or not a person should have paid a specific tax imposed upon the 59. Powers v. Mayor and Council of tain. Allsman v. Oklahoma City, Decatur, 54 Ala. 214. 21 Okla. 142, 95 Pac. 468. 60. Searcy v. City of Lawrence, 20 In Michigan in an early case a war- Ky. Law Rep. 1920, 50 S. W. 534. rant issued to the sheriff by the 61. County of Appling v. MeWil- county treasurer was held suf- liams, 69 Ga. 840. ficient, if fair on its face, to protect «-• McWilliams v. Phillips, 51 the sheriff in proceeding against him Miss. 196. i' 1 tort for seizing the property of 63. City of Sacramento v. Dillman, the plaintiff. Wood v. Thomas, 38 102 Cal. 107, 36 Pac. 385; Marshall Mich. 686. County v. Knoll, 102 Iowa 573, 579, 64. City of Chicago v. Enright, 27 69 X. W. 1146, 71 N. W. 571; 111. App. 559, citing Santa Cruz v. Aulanier v. The Governor, 1 Tex. Santa Cruz, R. R. Co., 56 Cal. 143. 653. See Straub v. Gordon, 27 Ark. 625: An action will lie to recover a sum Owensboro v. Fields, (Ky. 1907), 102 certain whenever one has the money S. W. 1184; State v. Fragiacomo, 70 mother which he in equity and Miss 799, 14 So. 21. good conscience has no right to re- § 198] LICENSES— NATURE OK— LE<; ISLATI YE POWERS. 231 sale of malt liquors by manufacturers the tax collector ha.s no au- thority to issue an execution against him. 68 In this connection it may be remarked that by the statutes in force it is ordinarily made a condition precedent to the right to engage in the traffic that a license shall be issued, and the fee paid in advance and in case one engages in such traffic without a license he is made liable to a criminal prosecution. The law affixes the penalty for selling liquor without the required license. The license, which must be a valid one, is essential to a lawful selling, and when obtained protects the licensee for sales made thereunder and with- out which the sales would be unlawful and the seller liable to criminal prosecution as provided by statute. If no license has been issued the seller is no way protected in respect to sales made by him and having no rights of a licensee he should not be liable for the license fee unless the statute renders him so liable therefor. In some states such a right to recover a tax or fee is expressly given by the law of the state. 06 So a pro- vision in a bill of rights that no man shall " be deprived of his liberty except by the law of the land or the judgment of his peers does not forbid the state to enforce the collection of a tax by imprisonment of the delinquent when no personal property can be found by the officer out of which to make the tax. 07 And a statute requiring the payment of a tax and the obtaining of a license and providing that in case of a failure to do so the payment of the tax 05. Brewer v. Nutt, 118 Ga. 257, v. Adkins, 108 Ga. 228, 33 S. E. 4f) S. E. 269. 881. In earlier decisions in Georgia, 66. Under the statute in Idaho however, a tax collector was held to if one fails to take out the license re- be authorized to issue an execution quired by law and conducts the liq- for an unpaid liquor tax. Sight v. nor traffic in violation of law a suit Fleming, 74 Ga. 593, holding that an may be brought in the name of the affidavit of illegality was insufficient state for the license fee. Bingham where fi. fa. issued by tax collector County v. Fidelity and Deposit Co., of a county against one to recover 13 Ida. 34, 88 Pac. 829. " special slate taxes for selling 67. Commonwealth v. Byrne, 20 spirituous liquors." See Sasser Gratt. (Va.) L65. 232 LICENSES—NATURE OF— LEGISLATIVE POWERS. [§ 199 may be enforced together with the payment of a certain per cent thereon to cover costs is not in conflict with a statute making it a penal offense to sell without a license and providing for the punishment of such offense. 68 § 199. Right to recover fee paid. It may be stated as a general rule that one who has paid a license fee or an amount in excess of that which he is obliged to pay can not recover back either the amount of the fee or the amount in excess of the legal fee where the payment by him is a voluntary one. 69 As to what renders a payment a voluntary one 6S. New v. State, 34 Tex. 100. 69. Arkansas. — Payton v. Hot Spring Co., 53 Ark. 23G, 13 S. W. 764. Florida. — Johnson v. Atkins, 44 Fla. 185, 32 So. 879. Georgia. — Commissioners v. Norris, G2 Ga. 538. Indiana. — Town of Brazil v. Kress, 55 Ind. 14, overruling Town of Prince- town v. Vierling, 40 Ind. 340; and Town of Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323. Iowa. — Guedert v. Emmet county, 116 Iowa 40, 89 N. W. 85, holding surety on land not entitled to re- cover. Louisiana. — Mayor and Board of Trustees v. Moss Hotel Co., 112 La. 525, 36 So. 552. Massachusetts. — Emery v. Lowell, 127 Mass. 138. Mississippi. — Tupelo v. Beard, 56 Miss. 532. A ' w Hampshire. — See Sargent v. Little, 72 N. H. 555, 58 Atl. 44. A - //• York. Baker v. Bucklin, 43 App. Div. 336, GO N. Y. Supp. 294. Only a moral obligation where money is wrongfully received by a city for a license issued by it. Any right to recover the same rests simply on a moral obligation on the part of the city to repay it. Bentley v. City of Raleigh, 130 N. C. 209, 213, 41 S. E. 281, 58 L. R. A. 178. A liquor tax paid before the approval of the required bond cannot be recovered back from the township receiving it. Curry v. Township of Tawas, 81 Mich. 355, 45 N. W. 831. Money paid pursuant to the provisions of an invalid ordi- nance adopted under an invalid statute is a voluntary one and can- not be recovered. Town of Edinburg v. Hackney, 54 Ind. 83. Where cities were transferred by an order of the circuit court from one class to another by which a larger license fee was ex- acted and such act was subsequently held to be invalid it was decided that the excess of the fee required by the class of cities to which these cities were transferred could not be re- covered as the payment was to a de facto city of such class and the regu- larity of the government of these cities as belonging to that class not having been questioned by the state the plaintiffs could not question it. Town of Providence v. Shackelford, 106 Ky. 378, 50 S. W. 542. One who has obtained a city li- § 199] LICENSES— NATURE OF LEGISLATIVE POWERS. 233 it may be said that it is of such a character where there was no fraud, no mistake of facts and no legal force compelling the pay- ment, 70 or, as the rule was stated in an early Indiana case, if the payment was made without protest, and not to procure the release of the plaintiff's person or property and without the use of any force, fraud, menaces or intimidation by the defendant or its agents, the payment is a voluntary one and cannot be recovered. 71 So money paid for a license issued by commissioners without au- thority to so act cannot be recovered back by the one paying it though he was assured by the commissioners that they had full power and authority to issue the license. 72 And where an exces- sive liquor license fee is demanded in good faith but under a mis- apprehension of law T , one who pays the same cannot recover back the excess and the fact that business necessities compelled the ob- taining of the license will not alter the voluntary character of such payment. 73 Again one who has voluntarily paid a part of cense and paid the amount of fee re- quired can not, though he has not used the same, repudiate it and re- cover back the amount paid merely be- cause subsequent to the issuance of his license the amount of the fee was lowered. Williams v. City Council, 68 Ga. 81G. A complaint against a town to recover money paid for a license al- leging that the money was extorted from the plaintiff by the officers of the town, and that it was paid to avoid arrest, fine and imprisonment and that repayment has been de- manded is good. Town of Princeton v. Vierling, 40 Ind. 340. ■When question whether pay- ment voluntary one of law.— The question whether payments made for the issuance of a license were voluntarily made, where the facts are undisputed is one of law. Eslow v. City of Albion, 153 Mich. 720, 117 N. W. 328. Evidence held immaterial.— In an action against a city to recover back monthly payments of the license fee for keeping a saloon, on the theory that the payments were made invol- untarily, under threats of arrest, it was held that the evidence did not justify the claim that they were so made and that evidence of the re- ceipt, agreement, and protest made the year previous relative to the li- cense fee of that year, afterwards re- turned, was properly excluded as im- material on the question whether payments were voluntary or not. Es- low v. City of Albion, 153 Mich. 720, 117 N. W. 328. 70. Welch v. Mayor & Council of Marion. IS Ala. 291. 71. Town of Edinburg v. Hackney, 54 Ind. 83. 72. Tat uin v. Town of Trenton, 85 Ga. 468, 11 S. E. 705. 73. Custin v. City of Viroqua, G7 Wis. 314, 30 N. W. 515. 234 LICENSES— NATUEE OF— LEGISLATIVE POWERS. [§ 200 the license fee required cannot recover the same from the officer to whom it was paid though no license was ever in fact issued as the money so paid voluntarily becomes the property of the state to which it is due and the officer receiving it is liable to the state therefor, and the fact that it may not yet have been paid to the state is immaterial as in such case the state has its remedy against its officer to recover the same. 74 jSTor can one who has made a part payment of the amount of the license fee and no license is issued because of a defective application and failure to give the required bond, recover back such amount as his failure to obtain the certificate or license is due to his failure to comply with the statutory requirements. 75 § 200. Right to recover fee continued. One who has paid under protest the sum required of liquor dealers under a statute subsequently held unconstitutional may recover back the sum so paid. 76 And where a statute forbid the granting of a license for a longer period than six months it was 74. Johnson v. Atkins, 44 Fla. 185, not be distinguished from other funds 32 So. 879. of the county, and can never become So in Oregon it has been decided the foundation for an action for that under the statute the tax re- money had and received, either quired must be paid into the county against the county or its treasurer." treasury before the license can issue Per Skinner, J. and that if the county refuse to issue A county treasurer receiving the license the party paying it cannot money in Lis official capacity as de- recover it back. McLeod v. Scott, 21 posit for a liquor license is not in- Oreg. 94, 20 Pac. 10G1, 29 Pac. 1, fob dividually liable to make a return lowing Trainor v. County of Mult- thereof on failure of licensing au- nomah, 2 Oreg. 214, in which it was thorities to grant the license. Hem- said :" The payment of the amount re- rich Bros. Brew. Co. v. Kitsap Co., quired by statute, is a condition pre- 45 Wash. 454, 88 Pac. 838, 9 L. R. A. ccilciit to his applying for a license, (N. S.) 910. and is not a deposit in the hands of 75. Scalzo v. Sackett, 30 Misc. R. the county treasurer, which can be (X. Y.) 543, G3 N. Y. Supp. 820. withdrawn at the pleasure of the ap- See Hague v. City of Ashland, 91 plicant, but goes at once into the Wis. 029, 65 N. W. 508. county treasury, and becomes a part 76. Catoir v. Watterson, 38 Ohio of the general county funds; and can- St. 319. § 200] LICENSES—NATURE OP— LEGISLATIVE POWERS. 235 held that one who paid under protest a license fee for twelve months to a municipality upon the promise of tin- common council to repay one-half if the license was held illegal I'm- the la.-t six months upon the license being held to be illegal to this extent, was entitled to recover one-half the fee. 77 Bu1 the fact of a mere protest without legal compulsion is held not to rescue - payment from its character as a voluntary one. 78 In - states provision is made by statute for a return of money paid for a license where the application is refused. Under a statute of this character providing that in case a license is denied the money paid to the county treasurer shall be returned to the applicant " upon the warrant of the board of county com- missioners " the word " warrant " has been construed as mean- ing authority simply and not the municipal security known as a county warrant. 79 In Xebraska it has been decided that where a liquor license has been issued by a city council and on appeal such license is cancelled the licensee is entitled to a repayment pro rata of the sum paid for the unexpired term. 89 And a similar rule has been followed under a Isew York statute. 81 What would seem to be the proper rule in such a case is an- nounced in a recent decision in Kentucky in which it was de- clared that where money is paid under a clear mistake of law or fact, which in equity and good conscience should not be retained by the party receiving it, a recovery will be allowed and it was decided that this doctrine applied where a judgment is rendered declaring a license to be valid and in reliance thereon the license fee is paid in which case it may subsequently be recovered where 77. Nurnberger v. Barnwell, 42 S. 81. The court may order restitu- te 158j 20 S. E. 14. tion of the pro rata amount of the 78. Welch v. Mayor & Council of sum paid for a liquor tax certificate Marion, -IS Ala. 291. to one to whom the certificate was 79. State v. Buechler, 10 S. D. 156, issued upon an order reversed on ap- 72 N. W. 114. peal. People v. Sackett, 15 App. Div. so. Chamberlain v. City of Te- (N. Y.) 290, 44 X. Y. Supp. 593. cumseh, 4:: Neb. 221, 61 N. W. 632. 236 LICENSES— NATURE OF— LEGISLATIVE POWERS. [§ 201 such judgment is reversed on appeal. 82 But in Indiana it has been decided that where an applicant who is granted a license by the county board under the statute pays the license fee and on appeal to the circuit court the license is refused within the year covered by the license the county board is not bound to repay to him any part of the money, the payment by him having been voluntary. 83 § 201. Provisions as to whom license may issue to. The legislature also has the power to limit by a uniform law the issuance of a license to persons only of a certain class or classes. 84 Where the privilege of conducting the liquor traffic is limited to a particular class of persons who comply with certain prescribed conditions before a person can rightfully exercise such privilege he must bring himself within the law and show that he has fully met all its terms and conditions. 85 In the exercise of this power it is competent for the legislature to limit the right to 82. Scott v. Board of Trustees, (Ky. C. A. 1909), 116 S. W. 788. In this state where one obtained a state license relying upon statements by the municipal authorities that if obtained a municipal license would be granted and also acting upon such statement expended money in renting a place and prearing for business and was subsequently required to pay more for a liquor license than was authorized by the city charter, such payment was held not a voluntary one and it was decided that there might be a recovery from the city of the amount paid in excess of what the charter allowed. Bruner v. Clay City, 100 Ky. 5G7, 38 S. W. 10G2. And it has also been held that liquor dealers who have paid a li- cense fee under a law after the enact- ment of a repealing statute, may re- cover the amount so paid although the payment may have been voluntary, they having no practical mode at the time of demand for resisting payment being under the duress of the pro- visions of the penal statute. Berg- meyer v. Greenup County, 19 Ky. Law Rep. 1599, 44 S. W. 82. And in another case in Kentucky it is decided that money paid under the mistaken belief that the ordi- nance was in fact valid and enforcible whereas it was void by reason of the fact of want of authority under the charter to pass it could be recovered. Bruner v. Stanton, 19 Ky. Law Rep. 1514, 43 S. W. 411. See also Feche- imer v. City of Louisville, 84 Ky. 306; 2 S. W. 65. 83. Board of Commissioners v. Kreuger, 88 Ind. 231. 84. Foster v. Police Commissioners, 102 Cal. 483, 37 Pac. 763, 41 Am. St. Rep. 194. 85. City of Montpelier v. Mills, 171 Ind. 175, 85 N. E. 6. § 202] LICENSES— NATURE OP— LEGISLATIVE POWERS. 237 every "white male inhabitant." 80 And the United States consti- tution is not violated by a statute providing that licenses shall only be granted to citizens of the United States of temperate habits and good moral character, 87 or by a statute which restricts the granting of licenses to residents of the state, 88 or to the mal inhabitants of the state, 89 or by a statute providing that any per- son desiring a license for the sale of liquors shall be a citizen of the state and a resident of the county wherein such license is sought. 90 And in an early case in Missouri it was held that the legislature could provide for two years' residence in the state as a prerequisite to the right to a license and that an act so provid- ing was not in violation of the United States Constitution. 91 And a statute providing that no license shall be issued unless the appli- cant shall have been " a continuous resident of the township in which the application is made " for a certain period of time will be construed as meaning township and the courts will not add the word " ward " thus imposing a further restriction which the legislature did not see fit to prescribe. 92 In the application of the rule that one not aggrieved or prejudiced by a law can not question its validity it has been held that a statute which excludes women and non-residents from the right to a license cannot be assailed by a male inhabitant of the state upon whom such a right is conferred. 93 § 202. License laws as affecting druggists— physicians. Statutes prohibiting the sale of intoxicating liquors without a 86. Thoraasson v. State, 15 Ind. N. E. 883, 9 L. R. A. 664 U. S. Const. 449. Art. IV, § 2. 87. Trageser v. Gray, 73 Ind. 250, W>. De Grazier v. Stephens, 101 20 Atl. 905, 9 L. R. A. 780, 25 Am. Tex. l!»4. Kir. S. \V. 992. St. Rep. 587, U. S. Const. Art. 14. S 1. »*« Austin v. State, 10 Mo. 591. 88. Mette v. McGuekin, 18 Neb. 92. In re Burns, (Ind. 1009). 87 323, 25 N. VV. 338. affg 149 U. S. N. E. 1028. 781, 13 Sup. Ct. 1050. 37 L. Ed. !>:.'.>. !>•**• Wagner v. Town of Garrett, U. S- Const. Art. IV. _>. 118 Ind. 114. 20 N. E. 706. 89. Welsh v. State, 12G Ind. 71, 25 038 LICENSES— NATUEE OF— LEGISLATIVE POWERS. [§ 203 license and which contain no exception in favor of druggists and pharmacists have as a general rule been held to apply to this class of persons, and to prohibit such sales by them even though made in good faith for medicinal purposes. 04 And where a statute con- tains certain exceptions in favor of sales by druggists one who as a druggist desires to make sales which do not come within such exceptions must comply with the general license laws of the state. 95 A druggist, however, who is taxed under the same law as other liquor dealers is subject to the same burdens and entitled to the same rights and privileges. 96 In connection with the sale or disposition of liquors for medical purposes it has also been de- cided that a practicing physician has no right, by virtue of his profession, to dispense intoxicating liquor to his patients for the purpose of medicine unless he hold a permit to deal in such liquors. 97 § 203. Local boards may be authorized to regulate and license. Local boards may be invested by the constitution or by the legislature with power to regulate the liquor traffic and to grant 94- Alabama. Carson v. State, 69 cal purposes it is necessary that he Ala. 235. should be engaged principally in sell- Illinois. Wright v. People, 101 111. ing drugs and medicines, though he 126. may incidentally admit into his store Kentucky. — Commonwealth v. Pow- and may vend articles not strictly ell, 22 Ky. Law Rep. 1932, 62 S. W. under the denomination of drugs and 19; Stormes v. Commonwealth, 20 medicines. State v. Wells, 28 Mo. Ky. Law Rep. 1434, 49 S. W. 451. 565. Missouri. — State v. Wells, 28 Mo. »6. Gibson v. State, 34 Tex. Cr. 565. 218, 29 S. W. 1085, holding that a Nebraska. — Brown v. State, 9 Neb. local option law suspended the gen- 189; 2 N. W. 214. eral prior law as to the payment of {>r »- Thomasson v. State, 70 Ala. 20 ; an occupation tax and the right to The Druggist Cases, 85 Tenn. 449, sell liquors and that a druggist came •'! S. W. 490; Preuzel v. State, 35 within the provisions of the local Tex. Cr. 27 \. :;:: S. \V. 350. option law the same as others. To render a person a druggist »7. State v. Benadom, 7fl Iowa 90, within the meaning of an act to tax 44 N. W. 218. State v. Fleming, 32 and license merchants so as to an- Kan. 588, 5 Pac. 19; Holt v. State, thorize him to soil liquors in any 62 Neb. 134, 86 N. W. 1073. quantity when used only for medi- § 1*03] LICENSES— NATURE OF— LEGISLATIVE POWERS. 239 licenses in the absence of constitutional restraint. 98 So undi c a constitutional provision that "any county, city, town or township may make and enforce within its limits all such local, police, tary and other regulations as are not in conflicl with gem ral laws " it has been held in California that the board of supers i of a county has power to regulate the sale of spirituous liquors within the county by imposing a license tax. ;,;> And a county ordinance has been held to bo valid by which a higher license is imposed upon saloons which are outside the limits of incorporated towns and cities than upon those which are within. 1 OS. State v. Dwyer, 21 Minn. 512, »»• Ex parte Wolters, 65 Cal. 269, holding that such power could be dele- 3 Pac. 894, citing in this connection gated to the board of supervisors of In re .Stuart, 61 Cal. 375. a township. See chapter IX herein 1. Ex parte Stephens, 114 Cal. 278, as to power of municipal corporations. 46 Pac. 86. 24(j LICENSES— MUNICIPAL POWERS. £§ 204 CHAPTER X. LICENSES— MUNICIPAL POWERS. Section 204. State may delegate power to license to municipalities. 205. Nature of power and exercise of. 206. Exercise of power continued. 207. Power to prescribe penalty. 208. Failure or refusal of city to license. 209. Grants strictly construed — Power must be clearly given. 210. Must not exceed power granted. 211. Must not discriminate — Interstate commerce. 212. Power under general welfare clause in charter. 213. Power must be exercised by ordinance. 214. Right to impose fee or tax generally. 215. Discretion as to amount of fee. 216. Fee must not be prohibitory. 217. Amount of fee as affected by state fee. 218. City may require license fee although state also does. 219. Power to impose conditions and make regulations. 220. Conditions as to revoking. 221. Prescribing limits for licensing traffic. 222. Ordinance void in part. 223. Delegation of power by municipality. 224. License subject to valid ordinances. 225. As to repeal of powers. Sec. 204. State may delegate power to license to municipalities. The legislature may grant to municipal corporations the power to regulate their own internal affairs and such legislation is fre- quently deemed advisable owing to the different conditions which may exist in different municipalities. This delegation of power may include the right to license or tax the liquor traffic which power is inherent in the state and where so delegated the munici- pality may license or tax such traffic in accordance with the power granted and subject to such limitations and restrictions as may § -'<>41 LI< ENSES MINK [PAL POWERS. 241 be imposed. 1 So it is said: " The power of the state to authorize the license of all classes of trades and employments cannol be 1. California. — Ex parte Braun, 141 Cal. 204, 74 Pac. 780; Foster v. Board of Police Commissioners, 102 Cal. 483, 37 Pae. 703, 41 Am. St. Rep. 7!)4; Sacramento v. Dillman, 102 Cal. 107, 36 Pac. 385. Colorado. — People v. Raims, 20 Colo. 459, 39 Pac. 341. Florida. Canova v. Williams, 41 Fla. 509, 27 So. 30. Georgia. — Perdue v. Ellis, 18 Ga. 586. Illinois. People v. Mount, 186 111. 560, 58 N. E. 300; Dennehy v. Chi- cago, 120 111. 027, 12 N. E. 227; Coul- terville v. Gillen, 72 111. 599. Indiana. — Emerich v. Indianapolis, 118 Ind. 279, 20 X. E. 795; Lutz v. Crawfordsville, 109 Ind. 406, 10 N. E. 411; Wiley v. Owens, 39 Ind. 429. Kentucky. — Kniper v. Louisville, 7 Bush. 599. Louisiana. — Mandeville v. Baudot, 49 La. Ann. 236, 21 So. 258, citing Mayor v. White, 46 La. Ann. 449, 15 So. 15. Michigan. — Sherlock v. Stuart, 96 Mich. 193, 58 X. W. 845, 21 L. R. A. 580 n. Minnesota. — Winona v. Whipple, 24 Minn. 61 ; Rochester v. Upman, 111 Mim. 108. V< w -Jersey. — Cooke v. Mercer Pleas, 51 X. J. L. 85, 16 Ail. 176. North Carolina. — Bailey v. Raleigh, 130 X. C. 209, 213, 41 S. E. 281, 58 L. R. A. ITS. Oregon. — Matter of Schneider, 11 Oreg. 288, 8 Par. 289. Washington. Thornton v. Terri- tory, 3 Wash. T. 482, 17 Pac 896. Wisconsin. — Richland County v. Richland Center, 59 Wis. 591, IS X. W. 497. A tax may be imposed and collected upon licenses by the local authorities when expressly au- thorized by the legislature so to do. State v. Stevens, 114 X. C. 873, 19 S. E. 801. State not estopped by general liquor law. — The enactment of a liquor tax law does not estop the state from empowering municipal corporations to further regulate the sale of liquor by requiring saloon keepers to take out a license. Wolf v. City of Lansing, 53 Mich. 367, 19 X. W. 38. Different license fee in differ- ent cities. — Tin- fact that the same license fee is nol required in all the cities of the state is no valid object i"ii to the law which confers power on the common councils in cities to pass ordinances fixing the rate of licenses within their limits. Wiley v. Owens, 39 Ind. 429. A statute, general in its oper- ation to confine the power to license the sale of intoxicating liquors to in- corporated towns and cities, where the police force is more efficiently or- ganized and can better control it has been held not to be an unauthorized exercise of the police power of the state in providing against the evils re- sulting from the traffic in such liq- uors Streeter v. People. 69 111. 595, wherein it is said: "A law that ap- plies to and confers the same general powers on all incorporated towns and cities in the state is not necessarily a special law, and is not inhibited by any provision of the constitution againsl special legislation." Per Mr. Justice Scott. A charter amendment fixing a license fee has been held valid in Washington. Seattle v. ('lark. 28 Wash. 717, 69 Pac. 407. Charter amendment conferring 242 LICENSES— MUNICIPAL TOWERS. [§ 204 doubted. And there is just as little doubt of the power to delegate this right to municipalities, either for the purpose of revenue, or that of regulation." 2 And it has been decided that a statute pro- hibiting the sales of liquor in a certain county is repealed as to a city in that county where the legislature subsequently passes a general law authorizing the common countil of cities of a certain class, to which such city belongs, to license, permit, regulate or restrain the sale of such liquors. 3 power — Effect on local option law.— Where the general local option law has been voted into operation in a civil district of which a city forms a part, a subsequent amendment to the city charter conferring for the first time authority on the city coun- cil to license the liquor traffic re- peals the local option law so far as the city is concerned. Tabor v. Lan- der, 94 Ky. 237, 21 S. W. 1056, hold- ing also that the power to license and tax in such case must mean exclusive power and that therefore the general local option law cannot again be voted into operation in the city. See also Hall v. Dunn, (Oreg. 1908), 97 Pac. 811. Act amending void act.— An act which confers power upon a town to license the sale of intoxicating liq- quors and which is an amendment of a void act, is also void. Copeland v. Town of Sheridan, 152 Ind. 107, 51 N. E. 474. "Where the legislature speci- fies different sums which a mu- nicipality may charge for a license and provides for an election to de- termine which sum shall be charged the amount fixed upon is a sum "re- quired by the general law" of the State. State ex rel. Faber v. Hinkel, 131 Wis. 103, HI X. W. 217. In California the county hoard of supervisors is held to have power to enact an ordinance prohibiting the granting of licenses for the sale of liquors in all precincts within the county except upon cer- tain prescribed conditions. Denton v. Vann (Cal. App. 1908), 97 Pac. G75, holding an ordinance valid which required the applicant, as a condition precedent, to present to the board of supervisors, with its bond and appli- cation, evidence to the effect that a majority of the electors at the last general election favored the granting of licenses in the election precinct where he proposes to establish his business. In Kansas it has been decided that the power to authorize, regulate or prohibit the sale of intoxicating liquors has been withheld from mu- nicipal corporations. State v. City of Topeka, 31 Kan. 452, 2 Pac. 593. Council does not act as a court where a city council is given power to grant a license it does not in ex- ercising such power act as a court, even though such act may be of a judicial nature, in the sense that it involves the exercise of judgment or discretion. State v. Columbia, 17 S. C. 80. 2. Van Hook v. City of Selma, 70 Ala. 361, 45 Am. Rep. 85. Per Somer- ville, J., citing Ex parte City Council, in re Knox, 04 Ala. 403; Cooley on Const. Lim. 581. 3. Brown v. Commonwealth, 98 Ky. 052, 34 S. W 7 . 12; Compare Mur- e 205] LICENSES— MUNICIPAL POWEBS. 243 § 205. Nature of power and exercise of. The powt r granted to the common council of a city to fix the rate of license for the privilege of transacting business, is a branch of the taxing power which is not affected by the constitutional requirement that taxes shall be uniform, as though the authority to fix the rate of license is a branch of the taxing power, it is not taxation pure and simple." 4 And the provision in a city charter granting to the common council the right not only to regulate and prohibit the sale of spirituous liquors, but also to fix the amount of assessment to be paid for a license, and directing that it shall bo paid into the city treasury for the use of the city is held to confer the taxing power for revenue purposes. 5 Where granted for police purposes however such power must be exercised as a means of regulation only and not as a source of revenue. This however is held not to confine the amount exacted to the expense of issuing the license but to allow the charging of a reasonable compensation for the additional expense of municipal supervision over the particular business or avocation at the place where it is licensed. 6 Whether in a given case the main purpose of an ordi- dock's Petition, 149 Pa. St. 341, 24 "• Flanagan v. Plainfield, 44 X. J. .\tl. 222. L. 118. The court said: "This legis- 4. Ex parte Hurl, 49 Cal. 557; lat ion shows a clear intent to put the See also Mayor v. Beasly, 1 Humph. sale of liquor under the absolute con- (Tenn.) 232, holding that municipal trol of the city council, and to per- corporations may tax privileges in mit the licensing power to be used as what proportion they choose provided a source of revenue to the city." Per the inequality is not such as to make Van Syckel, J. it oppressive on a particular class of Power conferred upon a city the community. to license privileges, business A municipal corporation may * * * a nd the amount of such license impose a privilege tax where it is taxes shall be fixed by city ordinance, the same on all persons pursuing the which amounts of such taxes shall same profession or occupation and not be dependent upon the general does not exceed the amount author- revenue law is held to be a power to ized by statute and such a tax does impose license taxes for revenue pur- nut violate a constitutional provision poses. Lachman v. yValker. 52 Fla, that " taxation shall be equal and uni- 297, 42 So. 461. form." Holberg v. Macon, 55 Miss. • Portland v. Schmidt, 13 Oreg. 11. Gambril] v. Endrich Bros., 143 17, 6 Pac. 221; See also Hershoff v. Ala. 506, 39 So. 207. Beverly, 45 X. J. L. 288. 12. Strauss v. City of Galesburg, 10. Canova v. Williams, 41 Fla. 203 111. 234, 67 X. E. 836, wherein 509, 27 So. 30. the court said: "Its provisions are Ordinance imposing tax con- specific, clear, equal and alike ap- strned. — An ordinance providing for plicable and open to all poisons who the payment of a tax by one who sells want to engage in either business, or gives away spirituous, malt, or and except no one from its operation fermented or spirituous liquors in any and confine the business of such to quantity whatever is not to be con- the same certain or specific territory strued as imposing the tax for a and the sales of each to specific places single act but for continuing acts in of business." Per Mr. Justice Kicks, connection with and as a part of the 13. State v. Gill, 89 Minn. 502, 95 business. San Luis Obispo Co. v. X. W. 449; City of Warrensburg v. Greenberg, 120 Cal. 300, 52 Pac. 707; McHugh, 122 Mo. 649, 27 S. YV. 523; See also Ex parte Seube, 115 Cal. Hoboken v. Goodman, 08 X. J. L. 629, 47 Pac. 59G. 217. 51 Atl. 1092j Stokes v. Schlach- 240 LICENSES— MUNICIPAL POWERS. [§ 208 said in an early case in Illinois that the authority to grant licenses to persons to sell liquors would be useless without the power to also restrain them from selling without a license as without such restraint the person to whom a license was granted would not by its issuance obtain any advantage over one selling without a license. 14 So the power to license places for the sale of fermented liquors, granted to a city where such places were unrestrained by general law, coupled with the general power to pass ordinances for promoting the peace, good order, and prosperity of the city, justifies an ordinance which forbids any sale of such liquors without a license and prescribes a penalty therefor. 15 And where authority is given to a town to license, regulate and restrain the sale of intoxicating liquors it has been decided that an ordinance making it an offense to sell without a license from the town is valid and does not conflict with a statute providing that whatever is made a public offense shall not be made punishable by an ordi- nance, though the state also makes it an offense to sell without a license from the state. 16 § 208. Failure or refusal of city to license. The fact that a city is authorized to pass an ordinance in rela- tion to licensing the sale of spirituous liquors does not operate as a repeal of the general law, and if they fail or refuse to grant a license the general law is violated by a sale in the city limits. 17 And where exclusive jurisdiction is conferred upon the authorities of incorporated towns to grant licenses within their incorporated ter, 66 N. J. L. 247, 49 Atl. 556; 90 Ind. 258, wherein it was declared Hershoff v. Beverly, 45 N. J. L. 288 ; that as the ordinance made it penal Meyer v. Treasurer of Bridgeton, 37 only where the sale was without a N. J. L. 160; Trustees of Clintonville license from the town it did not con- v. Keeting, 4 Den. (N. Y.) 341. flict with the penal law of the state 14. Sullivan v. People, 15 111. 233. which required that to constitute an 15. Stokes, Treasurer v. Schlachter, offense against the state the sale must 66 N. J. L. 247, 49 Atl. 556. be without a license from the state. 16. Clevenger v. Town of Rushville, 17 - Gardner v. People, 20 111. 430. § 209] LICENSES— MUNICIPAL POWEKS. 247 limits, the fact that the town may Bee prop ^ P*c. 368 5 Campbell v. 44 r, Thomasville (Ga. 1909), 64 S. E. Iowa. — City of Burlington v. Kellar, " . . 4G. Sanders v. Town Commission- 18 Iowa 59. „ 7n ers, 30 Ga. 679. Kentucky.— Commonwealth v. Voor- 47 Peop]e y village of Qrotty, 93 hies, 12 B. Mon. 361. T]] ]S0 See also Rosenberg v. Rohrer Massachusetts. — Commonwealth v. (Neb. 1909), 120 N. W. 159; Payne Locke, 114 Mass. 288. v. Ryan, 79 Nob. 414, 112 N. W. 598; Mississippi. — Leonard v. City of State v. Andrews, 11 Neb. 523, 10 Canton, 35 Miss. 189. N. W. 410. § 214] LICENSES— MUNICIPAL POWERS. 253 said in a recent case: " The power to license, including the po to fix the amount of the license fee, is a power which must be called into exercise by appropriate municipal legislation. A municipality can only legislate through the passage of ordinances, and not by the passage of mere resolutions. Ii is well settled that acts of legislation by a municipal corporation, which pre- scribe a permanent rule of conduct or government, and which are to have a continuous force and effect, musl be established by ordinance." 4S And it has been decided that where the powers to license and also to fix the amount of a license fee are coupled when the power to license is exercised by the passage of an ordi- nance the determination of the amount to be paid for the license should also be embodied in the ordinance. 49 § 214. Right to impose fee or tax generally. The police power is frequently exercised where it results in raising revenue and the fact that an ordinance imposing a license tax also produces a revenue to the city docs not render it any the less a police regulation. 50 And the fact that a license tax 48. People v. Mount, 186 111. 560, scribing the amount whether such 571, 58 N. E. 3G0. Per Mr. Justice ordinance is to be regarded as an Ma-ruder, citing Chicago & Northern occupation tax, one for revenue P. Pi. Co. v. Chicago, 174 111. 439, 51 purely, or whether as a police regu- N. E. 59(i : Village of Altamont v. lation, incidentally affording revenue. Baltimore & Ohio S. R. Co., 184 111. Cofer v. Commonwealth, 27 Ky. Law 47, 56 N. E. 340. Rep. 934. s? s. W. 264. See Cofer ■«!►. People v. Mount, 186 111. 58 v. City of Elizabethtown, 30 Ky. Law N. E. 360. Rep. 706, 99 S. W. I B. •">«►• Phillips \. City of Mobile, 208 Presumption as to validity of U. S. 472. 28 Sup. Ct. 370. aff'g ordinance.— An ordinance which im- Mobile v. Phillips, 146 Ala. 158, 40 poses a license tax on the traffic in re So. 82(1. tail liquors, which tax i- no! in e Where the legislature has in (loar of the amount which by charter the terms granted to a city the power to municipality is authorized to ii' impose a tax for the carrying on of in the exercise of power conferred the liquor traffic and the amount is upon it t<> license and regulate the left to the discretion of the city coun- sale or gifl of such liquors, is in the cil it is immaterial upon the question absence of evidence establishing of the validity of an ordinance pre- invalidity presumed to be valid. L >54 LICENSES— MUNICIPAL TOWERS. [§ 214 imposed upon dealers in intoxicating liquors is higher than the tax upon dealers in other commodities, does not render the tax invalid because discriminative. 51 A tax may also be valid which is graduated on the basis of the amount of the sales. 52 And an ordiance which provides that the license fee shall be higher in a place where intoxicating liquors are sold and in which females are employed than it is where they are not employed has been held to be valid and constitutional. 53 But though a municipal corporation is empowered to exact a license fee the authorities cannot by ordinance bind their successors in office by providing that no license shall be issued for less than a certain sum per year until the expiration of those for which that sum has been paid. 54 And where the city council fixes the license for retailing liquors at a sum within its discretion under the statute, the same council, at a subsequent meeting, or its successor, may, within the limit allowed by the statute, raise or lower the tax so as to bind persons applying for such license after the change has been made. 55 Again it is decided that one who has paid money to a municipal corporation for a license which it has assumed to grant in excess of its power may recover from the corporation the sum so paid. 56 Johnson v. Town of Fayette, 148 Ala. that " no person shall on account of 497. 42 So. 021. sex, be disqualified from entering License fee not a tax.— A li- upon or pursuing any lawful busi- eense fee imposed by a city under its ness, vocation or profession." power to " tax, license and regulate " 54. Williams v. City Council, 68 is not a tax in the constitutional Ga. 816. of the term. United States 55- City of Mt. Sterling v. King, Di tilling Co. v. Chicago, 112 111. 19. 31 Ky. Law Rep. 919, 104 S. W. 51. Lachman v. Walker, 52 Fla. 322. 297 1- So. 461. 56# Leonard v. City of Canton, 35 52. Allentown v. Gross, 132 Pa. St. Miss. 189; See also Mt. Sterling v. 319, 19 Ail. 269. King, 31 Ky. Law Rep. 919, 104 53. Ex parte Felchlin, 96 Cal. 360, S. W. 322. 31 Pac. 224, 31 Am. St. Rep. 223, See §§ 199, 200 herein as to right holding that the ordinance did not to recover fee. violate the constitutional provision §§ 215,216] LICENSES MUNICIPAL POWERS. 255 § 215. Discretion as to amount of fee. The legislature may confer a lawful discretion upon boards and officers appointed to grant liquor licenses. 67 And where a municipality is vested with the power to license, tax, and regulate the liquor traffic the fee which it may impose is to a certain extent though not absolutely discretionary with the city au- thorities. 58 And a city may prescribe a higher rate for a lie. in the business or thickly populated part of the city than it does in a suburban section which is not so thickly populated and the business carried on is more that of a tavern or wayside inn. Such an ordinance is not discriminatory, the difference being justified by the difference between the quantum of sales. 59 But under power to license, regulate and restrain an exorbitant tax or license fee cannot be required of one whose place of business is remote from the settled portion of the city. 60 § 216. Fee must not be prohibitory. While the power to license is said to imply the power to with- hold a license and confers a certain discretion as to the amount of the fee, yet it does not confer the right to prohibit or to pass an ordinance requiring the payment of a license fee which is •"7. State v. City Council, 7 Wyo. 60. Salt Lake City v. Wagner, 2 H7. 52 Pac. 975, 40 L. R. A. 710. Utah 400. 58. City of Indianapolis v. Bieler, Power conferred upon a munici- 138 Ind. 30, 3G N. E. 857, so holding pality to pa breweries and distilleries. stitutions or statutes and to restrain See also Dennehy v. Chicago, 120 111. liquor shops and impose license 027, 12 N. E. 227. taxes confers no authority to pass 59. County of Amador v. Kennedy, an ordinance fixing the charge for a 70 Cal. 458, 11 Pa.-. 757; City of liquor license outside a restricted East St. Louis v. Wehrung, -US 111. area at fifteen hundred dollars ad- 392, wherein it is declared thai Buch ditional to that imposed in such area. an ordinance would be founded on the it l>ciiiLr admitted a No that the cost self-evident fact that a business may of policing is the same and that both be conducted with much more profit districts contain residence and busi- in some streets of a town than in ness sections. Howland v. State ex others and the privilege therefore rel. Zirkleback. 50 Fla. 422, 47 So. more valuable. 963. 256 LICENSES— MUNICIPAL POWERS. [§ 217 prohibitory. The power to prohibit must be expressly conferred and it cannot be exercised under the power to license, tax and regulate by imposing a fee which in effect is a prohibition of the traffic. 61 So power conferred upon the voters of a municipality to determine by popular vote the amount which may be charged for a license fee does not authorize them to fix a fee by v^ote which is prohibitory. 02 But it cannot ordinarily be assumed judicially that a sum required by a city as a license fee is a virtual prohibi- tion of the sale of liquors. 63 And the amount of a liquor tax will not be regarded as prohibitory so as to render the ordinance fixing it invalid where it is shown that under a slightly less tax other dealers in the same town made a net profit on the business during the preceding year. 64 § 217. Amount of fee as affected by state fee. Power to a city or other local authorities to license the traffic does not authorize the imposing of a larger license fee than is fixed by the laws of the state where such laws contain a limita- tion to this effect. 65 And where the act creating a town limits 61. Alabama— Kx parte Burnett, Compare Intendant of Marion v. 30 Ala. 461 ; followed in Craig v. Chandler, G Ala. 899, under power to Burnett, 32 Ala. 728. This doctrine license, regulate and restrain, was also affirmed in Ex parte Sikes, Under power to a municipality to 102 Ala. 173, 15 So. 522, 24 L. R. A. license, regulate tax or suppress a 774^ license fee of five hundred dollars was California.— Merced County v. held proper. Wallace v. Cubanola, Fleming, 111 Cal. 46, 43 Pac. 392. 70 Ark. 395, 68 S. W. 485. Indiana.— Sweet v. Wabash, 41 62. Berry v. Cramer, 58 N. J. L. In( l_ 7. 278, 33 Atl. 201. Louisiana— State v. Police Jury, 63. Ex parte Hurl, 40 Cal. 557. 120 La. L63 3 45 So. 47, holding a five Tacts of each case control.— thousand dollar fee imposed by the Whether the price of a license as police jury to be prohibitory. See fixed by a municipality is so exces- also State v. Police Jury, 116 La. sive as to be prohibitory must be :] g 85. determined by the fads and circum- Missouri.— Ex parte Hinkle, 104 stances of each case. Ex parte Sikes, Mo. App. in I. 7S S. W. 317. 102 Ala. 173, 15 So. 522, 24 L. R. A. Oregon.— Portland v. Schmidt, 13 774. See Merced County v. Fleming, Oreg. 17, 6 Pac. 221. Ill Cal. 46, 43 Pac. 392. § oj^g-j LICENSES— MUNICIPAL POWERS. 257 its power to the exacting of a license fee not in excess of that required by the state, the subsequent removal of a constitutional restriction to the same effect as to all cities ami town.- does not of itself remove the limitation upon the power of the city or town in the act creating it. 06 § 218. City may require license fee although state also does. A city may exact a license fee where power is given it to license, regulate and restrain the liquor traffic even though the state may also exact one. 67 And the delegation of power to municipalities to license, regulate and prohibit the sale of in- 64. Johnson v. Town of Fayette, 148 Ala. 497, 42 So. 621. 65. State v. Chase, 33 La. Ann. 287. See also Kniper v. City of Louisville, 7 Bush (Ky.), 599, where the charter provided the limit which could be charged. Town of Paris v. Graham, 33 Mo. 94. Compare Intendant of Marion v. Chandler, 6 Ala. 899, holding that under authority to license, regulate and restrain the liquor traffic and to restrain and prohibit drunkenness a municipality may exact a license fee which is greatly in excess of that re- quired by the state, even though it may be in effect prohibitory. Where the sum charged by the laws of a state for a license to sell spiritu- ous, vinous and malt liquors was one hundred dollars and for a license to sell vinous and malt liquors was fifty dollars it was decided that a town au- thorized to license the sale of vinous, malt and other intoxicating liquors and to charge a fee not to exceed thai required by the statutes of the state to sell or retail intoxicating liquors had a right to issue a license to sell intoxicating liquors generally and charge a license fee of one hundred dollars. Copeland v. Town of Sheri- dan, 152 Ind. 107, 51 N. E. 474. 66. Petitfils & Bro. v. Town of Jeanerette, 52 La. Ann. 1005, 27 So. 358. 67. Intendant Chandler, 6 Ala. of Marion v. 899 ; followed in Intendant of Greensboro v. Mullins, 13 Ala. 341; and West v. Corporate Authorities of Greenville, 39 Ala. 69; See Moore v. Indianapolis, 120 End. 483, 22 N. E. 424; City of Frankfort v. Aughe, 114 Ind. 77, 15 N. E. 802; Drysdale v. Pradat, 45 Miss. 445. Where a person has obtained and paid for a license to sell liquors within a county it has been decided that a city council cannot by an ordi- nance passed subsequent to the issu- ance of such license impose and col- lect an additional tax from such li- censee during the term of his license. Mayor v. Lumpkin, 5 C.a. 447. Licenses to sell on steamer.— A licensee for the business of retailing liquors owes one license to the state and one to the local authorities of the home port of a steamer running on navigable waters and is not obliged to pay a license at every land- ing in the state during the course of the voyage. State v. Deunie. 51 La. Ann. 608, 25 So. 394. 258 LICENSES— MUNICIPAL POWERS. [§ 218 toxicating liquor therein, does not except persons holding licenses or permits from such municipal corporations from the payment of the license fee required by the state. 68 But where towns or cities have the exclusive privilege of granting license to sell in- toxicating liquors and of prescribing the terms on which they may be sold within their corporate limits, it is decided that no person need have any other license than the ordinance passed in the exercise of such power may provide and that if a person brings himself within their provisions he is not liable to indictment under the state law as the latter is suspended thereby, 69 and GS. Parsons v. People, 32 Colo. 221, 76 Pac. 666. See State v. White, 115 La. 779, 40 So. 44, holding that the fact that a city ordinance requires a permit to enable one to carry on the business of selling intoxicating liquors and that one engaged in such occupation has violated the ordinance by not ob- taining the necessary permit, does not exempt him from the general li- cense laws of the state and from the payment of the fee required by state laws as the state does not concern itself with the enforcement of munici- pal regulations. 69. Village of Coulterville v. Gillen, 72 111. 599; Bennett v. People, 30 111. 389; Commonwealth v. Luck, 2 B. Mon. (Ky.) 296. See Licks v. State, 42 Miss. 316; But see State v. Nolan, 37 Minn. 16, 3.3 N. W. 36. Where power is exclusively conferred upon the municipal or county authorities to license tax and regulate the liquor traffic within the corporate limits, it is de- cided that a license from the au- thority having such power is all that is required. Hetzer v. People, 4 Colo. 45 : Examine People v. Raims, 20 Colo. 489, 39 Pac. 341. State licenses must be granted. — A statute giving to the council of a city exclusive power to grant or re- fuse license to sell spirituous liquors within the city, regardless of the ac- tion of the county court, and the pro- vision of the act that the county court shall grant state license after the council has granted such license, is mandatory upon the county court. Ward & Co. v. County Court, 51 W. Va. 102, 41 S. E. 154. So where by statute the exclusive control of granting licenses was vested in the town authorities by whom a license was issued it was held that the licensee was not required to obtain another license from the county court but should tender or pay to him the license tax due the state and that the refusal of the clerk to accept such money did not affect the right of the licensee to sell. Koch v. Com- monwealth, 27 Ky. Law Rep. 122, 84 S. W. 533. A statute as to the filing of bonds and affidavits by persons engaged in such traffic will not be construed as applying to one licensed by a city having sole and exclusive power to tax, license and regulate. State v. Millard, 39 Mo. App. 251. Where a statute provided among other things that the payment of a g L >1!)| LH ENSES MUNICIPAL POWEES. 259 especially would this be true where power to License is exclusively conferred upon the city council, the statute also providing that a person so licensed need obtain no other license. 70 § 219. Power to impose conditions and make regulations. Power to license, tax, regulate and restrain the liquor traffic in a city confers the right to provide by ordinance the manner and the terms and conditions upon which the license shall be issued, the amount of tax to be imposed, the mode of collecting it, and to establish reasonable rules and restrictions to be ob- served in conducting the business of these places. 71 Thus it is within the power of a city having such authority to provide by ordinance that an applicant must obtain the consent of the corn- specified tax and the filing with the city auditor of a written consent to the sale of liquor, signed by the ma- jority of the voters of a city should upon the " following conditions " be a bar to proceedings under the statute prohibiting such sales and one of the succeeding conditions was the filing with the auditor of a copy of a resolution of consent of the city coun- cil, it was decided that the action of the city council in passing such a resolution was not a determination of the sufficiency of the statement of ei nsent signed by the voters, which would protect it from collateral at- tack in a suit to enjoin a liquor nuisance. State v. Pressman, 103 [owa i 19, 72 N. W. 660. 70. State v. Pfeifer, 26 Minn. 175, followed in State v. Fleekenstein, 2G Minn. 177. 71. City of Portland v. Selimi.lt, 13 Dreg. 17. 6 Pac. 221. When must conform to gen- eral late. — Where a constitutional provision that laws of a general na- ture shall have a uniform operation throughout the state and that no special law shall be enacted for which provision has been made by a general existing law, a local law is invalid which provides rules as to the grant- ing of licenses which differ from the general law. Smith v. State, 90 Ga. 133, 15 S. E. G82. Reporting names of liquor sellers. — An ordinance requiring the city marshal to report to the city council the names of all persons en- gaged in the liquor traffic, whether licensed or unlicensed, applies to all persons engaged in such traffic, whether they are wholesalers or re- tailers. State v. Cummings, 17 Neb. 311, 22 X. W. 545. 7ta. State v. City Council, 7 Wyo. 417. :>2 Pae. !t7.-), lit L. P. A. 710, holding that the discretion in Buch a case should hi' reasonably and soundly exercised and not enfoi merely as a matter of caprice. Where the board of aldermen by a vote, which has the effeel of a stand- ing rule, has provided that no licenses shall he granted unless si\ members of the board shall assent thereto it is held that this rule while it is in 260 LICENSES— MUNICIPAL POWERS. [§ 219 mon council, 7 la or to limit the number of saloons for which licenses may be granted, 72 or to restrict the issuance of licenses to such persons as have obtained a license from the board of county com- missioners, 73 or to require a written application and the recom- mendation of a certain number of citizens, or a petition of a certain number of freeholders, 74 or the consent of a certain number of property owners. 743, A municipal corporation may also make conditions as to the character of persons to whom a license force and acted upon determines the effect of any vote in granting a li- cense. Commonwealth v. Moran, 148 Mass. 453, 19 Is. E. 554, holding that where only four aldermen out of seven present voted in favor of an applicant for a license, there was no license granted. 72. State v. Common Council, 94 Minn. 81, 101 N. VV. 1063. A limitation of the number of li- censed places within the territory of a town or city is a reasonable ex- ercise of the police power and is not in conflict with the Fourteenth amend- ment to the constitution of the United States. Decie v. Brown, 167 Mass. 290, 45 N. E. 765. 73. Wagner v. Town of Ganett, 118 Ind. 114, 20 N. E. 706. Wells v. Torrey, 144 Mich. 689, 108 N. W. 423, holding that a city ordi- nance requiring saloon keepers to ap- ply to the city council for license by written application accompanied by the approval of a certain number of reputable citizens and containing an agreement to accept the license sub- ject to the condition that it may be revoked at any time by the council and providing for the revocation of licenses by the council on notice and hearing, is not invalid because it al- lows any one to be disqualified from business by the mere will of the coun- cil, does not permit an applicant any hearing on the facts nor assure him any hearing which can be examined by a competent court in case of capricious abuse, and permits the same persons to be judges of the proper causes of rejection and of the fitness of persons under such causes. Where a city had power to grant licenses an ordinance providing that an applicant for a license should be- fore receiving the license " produce the written recommendation of four of his nearest neighbors, each signature to represent a separate and distinct establishment " was held to be legal and valid. Whitten v. Mayor & Coun- cil of Covington, 43 Ga. 421. 74. Martens v. People, 186 111. 314, 57 N. E. 871. 74a. A city ordinance requiring the obtaining of consents of property owners within a certain distance of a proposed saloon and providing the manner in which such consent shall be shown is not illegal as conferring arbitrary powers on the property holders and the city council. New Orleans v. Smythe, 116 La. 685, 41 So. 336, L. R. A. (N. S.), 722n. The fact that a county license may issue upon the petition of a " ma- jority of the tax-paying citizens " in the block or square where the busi- ness is to be carried on does not affect the right of a city to pass an ordinance requiring the consent of the § 220] LK'E.XSKS MIMCH'AL POWERS. 261 may be granted. 75 Again a city or town council having power to license and regulate the sale of liquors, may legally, in issuing a license, confine the Bale of liquor to a particular room in the house. 70 But though an ordinance provides that the business shall be carried on at one place only it is decided that as long as the business is conducted at the place named, the licensee is within the provisions of the ordinance though he may maintain more than one bar at such place. 77 § 220. Conditions as to revoking. Power given to a city to restrain, regulate or prohibit the sale majority of the property owners on the street or block as a prerequisite to the granting of a city license. Kansas v. Flanders, 71 Mo. 281. 75. State v. City Council, 7 Wyo. 417, 52 Pac. 975, 40 L. E. A. 710. See also People v. Blom, 120 Mich. 45, 78 N. W. 1015. Where a city council has discretion in the granting of liquor licenses, it may refuse to grant a license to dis- reputable characters whose conduct of the liquor business would be dan- gerous to the public peace and quiet of the city. Perkins v. Loux, 14 Idaho 607, 95 Pac. 694. The phrase ex post facto law ap- plies to a penal or criminal law or to a law affecting vested property rights and an ordinance which pro- vides that one who has been con- victed of a felony or who has been convicted of selling liquor in places where females were employed shall be deprived of his right to a liquor li- cense is not an ex post facto law within the meaning of that term, though it is retrospective in so far as it determines from the past conduct of a parly, his fitness for the pro- posed business. Foster v. Board of Police Commissioners, 102 Cal. 483, 37 Pac. 763, 41 Am. St. Rep. 194. The court said: "The ordinance in question punishes no past act com- mitted, done or suffered to be done by appellant but simply furnishes a standard applicable to all persons, by which their fitness to conduct a busi- ness, in itself dangerous to the morals and good order of the city, shall be measured." Per Haynes, C. 76. Sanders v. Town Council of Elberton, 50 Ga. 178, holding that whether two rooms in a particular house, in which it is proposed to sell spirituous liquors, be in truth two different places is a question of fact. 77. City of St. Louis v. Gerardi, 90 Mo. 640, 3 S. W. 408, so holding where the license was for the sale of liquors in a hotel and the licensee maintained three bars on the ground floor of the hotel, screened off by partitions having direct and imme- diate connection by doorways, all of which were accessible to the guests without going out of the hotel. 78. State v. Hoctor (Xeb. 1909), 120 X. W. 199. s,-e also Schwuchow v. Chicago, 68 111. 444. See chapter XIV herein. An ordinance regulating the licens- ing of the sale of near beer which 262 LICENSES— MUNICIPAL POWERS. [§ 221 of intoxicating liquors by ordinance is sufficient to authorize the adoption of by-laws or rules controlling the traffic, including the right to revoke a license upon the violation of any statute or ordinance of the city pertaining to the traffic or for a violation of any reasonable regulation adopted for the control of the traffic. 78 And where a party applies for and accepts a license under an ordinance imposing restrictions and conditions, and the license itself contains a condition that it may be revoked at the discretion of the mayor, the licensee thereby assents to the terms and con- ditions imposed, both in the license and the ordinance under which it was issued. 79 And a provision in a statute delegating power to a municipal corporation to grant licenses that no license shall be granted for less than a year does not deprive the muni- cipality in the exercise of its power of regulation to revoke a license. 80 But power conferred by charter upon a city " to license, regulate and restrain " the traffic in intoxicating liquors is held not to imply the power to prescribe upon what conditions the license may be revoked, it being declared that the words are to be construed in their usual sense and cannot be enlarged by construction, but rather are to be regarded as an express limita- tion upon the municipal authorities empowering them to deal with the subjects only in the respects these words imply. 81 § 221. Prescribing limits for licensing traffic. The legislature is authorized to empower city councils by special charter to prescribe the bounderies and limits within which the sale of liquor may be licensed, and in such a case the provides that the license shall be for- 488 n ; Sehwuchow v. City of Chicago, feited if the holder is convicted of 08 111. 444. violating the slate liquor laws or the 80. State v. Dwyer, 21 Minn. 512. ordinance of the municipality is valid. 81. State v. Milwaukee, 129 Wis. Campbell v. City of Thomasville (Ga. 5G2, 109 N. W. 421, holding that the 1909), 64 S. E. 815. general laws in respect thereto were 79. Malkan v. Chicago, 217 111. exclusive. 471, 7.", N. E. 548, 2 L. R. A. (N. S.) § 222] LICENSES— MUNICIPAL POWERS. 263 local authorities may define and limit the ana within which alone such sale may be lawful. 82 And a statute authorizing cities to pass ordinances prohibiting the sale of intoxicating liquors in the residence portion thereof, and confining the sale to the busi- ness portion is not unconstitutional as being local or special legislation. 83 And an ordinance passed in the exercise of the power conferred upon a municipality which prescribes the limit- within which intoxicating liquors may and may not l>e sold and which provides that the ordinance shall not be so construed as affecting liquor licenses already granted is not void on the ground of unjust and unreasonable discrimination in that under such ordinance the license of one dealer may expire before the licenses of others and that therefor he is prevented from conducting the business for the same period of time as they are. 84 And it has also been decided that powers given to a city to license, regulate and prohibit are not to be construed as given in the alternative but cumulatively, and to be exercised concurrently whenever the municipal authorities in their discretion see fit to exercise them. Therefore under such power a city may license the liquor traffic in one section of its territory and prohibit it in the residue. 85 § 222. Ordinance viod in part. The general principle applicable in the case of a statute that if it contains both valid and invalid provisions and the invalid part can be stricken out and the remainder can stand complete by itself effect will be given thereto, 86 applies also in the case of 82. Andreas v. Beaumont (Tex. Iiul. 14. 46 N. E. 138. Civ. 1908), 113 S. W. 014. 83. Shea v. Muncie, 148 Ind. 14, Effect of license from county. 46 X. E. 138. See §§ 100 and 101, —Where a city under authority con- herein. ferred upon it has prohibited Bales 84. Andreas v. City of Beaumoni within a certain pari thereof a license (Tex. Civ. 1908), 113 S. W. 614. issued by a county does not exempt 85. People v. Cregier, 138 111. 401, the licensee from a compliance with 28 X. E. 812. such regulation. Shea v. Muncie, 1 is s<». Sec 8 07. herein. 264 LICENSES— MUNICIPAL POWERS. r§ 223 an ordinance. So though a provision of an ordinance that a license may be transferred is void as being contrary to statute, yet if this part can be stricken out and there will remain a com- plete and perfect ordinance it is decided that such part will be allowed to stand. 87 And though a town may have no right to exact a license for the sale of a certain liquor yet this will not invalidate an ordinance in respect to other liquors which it has the power to regulate and license. 88 Again though under the laws of the state a person may sell, without license, liquors in excess of a certain quantity, an ordinance prohibiting the sale of liquor without license and which specifies no quantity, is valid as to sales in quantities less than those permitted. 89 But where the liquor license was fixed by the same ordinance by which the revenue licenses were fixed and the latter were not intended as police regulations, it was declared that it would be a strained construction to single out the liquor license as a police regulation, and therefore validly imposed and yet to hold that the other licenses were intended for revenue and invalid, merely because the liquor license was higher. 90 § 223. Delegation of power by municipality. Where the power to license is conferred upon the councils of cities and villages such power cannot be delegated to officers or individuals. 91 So power granted to the common council of a city to license and regulate saloons cannot be delegated by the council 87. Wallace v. Cubanola, 70 Ark. App. 654, citing East St. Louis v. 395, 68 S. W. 485. Wehrung, 50 111. 28; Suarth v. Peo- 88. Warner v. Town of Ganett, 118 pie, 109 111. 621. Ind. 114, 20 N. E. 706. May appoint person to collect 89. State v. Pirester, 43 Minn. 373, tax. — Power to impose a license tax 45 N. W. 712. includes the power to appoint a 90. Sheriff v. Daigle, 107 La. 510, suitable person to collect the tax. 32 So. 94. In re Lawrence, 69 Cal. 608, 11 Pac. 91. Carbondale v. Wade, 106 111. 217. § 224] LICENSES MUNICIPAL POWERS. 265 to the mayor of the city. 02 And where exclusive legislative power is conferred in regard to controlling or prohibiting the traffic in intoxicating liquors and there is no referendum clause it is decided that the power cannot he delegated to the elector But the city council may delegate the power to issue a license to the clerk of the council, where such power is purely ministerial and involves the exercise of neither judgment nor discretion.'" And when a city is authorized to license, regulate or prohibit the sale of intoxicating liquors an ordinance is held to be valid which authorizes a committee of the council to refuse a liquor license if in their opinion the location of the saloon would disturb the public peace and good order, and providing an appeal to the board of mayor and aldermen from the determination of the com- mittee. Such an ordinance, though it vests a discretion in the committee is declared not to be subject to the objection that it vests an arbitrary discretion, as the legislature could vest such a discretion and under such a general power to the city, it may likewise do so. 95 § 224. License subject to valid ordinances. A license to sell liquors is taken by the licensee subject to the valid ordinances of the city or town in which he carries on his business. 90 And it has been decided that an ordinance passed subsequent to the issuance of a license denouncing a penalty of a fine for its violation by such person as shall keep open his saloon after a certain hour at night, is not subject to the charge 92. Winans v. Bayonne, 44 N. J. L. 96 Pac. 505. 114, holding that an ordinance an- 04. i n re Guerrero, GO Cal. 88, 10 thorizinj; the mayor, upon the recom- p ggl mendation of the common council, to «_.-., T , , ., „,„ ., . .. , , , , !),> - Cooke v. Loner, lol Ala. 540, issue a permit for the sale of ale, beer r and other malt beverages, at picnics •*•* s "- ,s - or social gatherings, for a license fee •«■ Baldwin v. Smith, 82 111. 162; was illegal and void. Maxwell v. Corporation of Jonesboro, 98. Galindo v. Walter (Cal. C. A.). 11 Ileisk. (Tenn.) 257. 2GG LICENSES— MUNICIPAL POWERS. [§ 225 of being an ex post facto, or retroactive law, unless the act sought to be punished was committed prior to its passage. 97 § 225. As to repeal of powers. The power of cities and towns as to licensing will of course not be affected by a subsequent statute which provides that no provision of such act shall be so construed as to interfere with or in any way to abridge the powers granted to them. 98 And though by amendments to the constitution and statutes of the state, the power of cities to license the liquor traffic may be taken away, yet such an amendment will not by mere implication be given a construction taking away the power to punish for selling liquors in violation of law and of the ordinances passed by the city in the exercise of its power to regulate the traffic. 99 But where a general act to establish a uniform license system throughout a state is passed which is inconsistent with a prior special act con- ferring power on a town to license the traffic in liquors, the latter act will be regarded as repealed by the general law. 1 And the 97. State v. Isabel, 40 La. Ann. 340, 4 So. 1. 98. State v. Neeper, 3 G. Greene (Iowa) 337. Where cities are classified, charters granted to cities of a certain class authorizing licenses to he issued or refused by such cities does not re- peal prohibitory law where the char- ters of such cities provide that " no license shall be issued or granted in any city where the sale of such liq- uors is now forbidden by law until such law is changed." Raubold v. Commonwealth, 21 Ky. Law Rep. 11:.'.-,. 54 S. W. 17. 99. Franklin v. Westfall, 27 Kan. (il 1. 1. People v. Town of Thornton, ISO 111. Ifi2, 57 N. E. 841. Where a charter of a town authorizes it to collect a tax from liquor dealers subject to such general school law as the state may adopt, the subsequent passage of a general law forbidding the levying of an additional tax on a license therein provided for in such law for city, county or town purposes repeals the power conferred by the charter. Tupelo v. Beard, 56 Miss. 532. A charter to a city which exempts persons procuring a liquor license from the city from paying a license tax to the county for carrying on the business is repealed by a general law which provides for a license tax for the counties and which in express terms repeals all laws, general and special in conflict with its terms; though a subsequent act passed the same year confers power on counties 1<> levy a liquor tax but provides that the statute shall not affect the exemp- § 225] I.M I \h:k MIWICIPAL POWEKS. 2r>7 legislature may, where it Las conferred power upon certain officials to grant licenses, by a subsequent enactment, take away all powers so conferred, or provide that they shall be relieved of such powers upon the happening of a certain contingency, and tions allowed by city charters. Gas- Ion v. O'Neal, 145 Ala. 484, 41 So. 742. A provision in a city charter per- mitting the city to license saloons and to keep the moneys coining to the city by taxation or otherwise is re- pealed by intendment by a later gen- eral statute making a dill'erent dis- position of a portion of the funds re- ceived from liquor license in all in- corporated towns, cities and villages in the state. State v. Spokane Falls, 2 Wash. 40, 25 Pae. 903. A code provision authorizing cities to fix tlie license fee but providing that it shall not be below or in excess of certain staled amounts is repealed by implication by an act empowering cities to frame their own charters and to fix by ordinance the amount to be paid therefor and im- posing no restriction as to the amount. Seattle v. Clark, 28 Wash. 717, 69 Pac. 407. A statute conferring exclu- sive power on towns to grant licenses to sell liquor within their limits is not repealed by a subse- quent general law providing for the granting of licenses by, and the pay- ment of the state tax to the county clerk and which further provides that a license granted by a city or town having authority to grant the same shall be void unless the state license be obtained and the state be paid before the grant thereof. Adams v. Stephens, 88 Ky. 443, 11 S. W. 427. See State v. Prats, 10 La. Ann. 785. Where a town is given the sole and exclusive power to grant licensi • to retail spirituous and vinous liquors within iu limits a subsequent act which forbid the granting of licen — to sell liquor in less quantity than one gallon is held simply to suspend the exercise of the power by the town for want of some subject on which it can operate and where a later law is passed restoring the capacity to obtain a license, the impediment to the exercise of the power by the town is removed. Corporation of Aberdeen v. Saunderson, 8 Sm. & M. (.Miss.) 663. A statute providing that a so- cial club upon payment of a certain tax may distribute liquors among its members and exempting them from obtaining any license or paying any of the tax is a limitation upon the power conferred prior thereto upon cities and towns to impose a license tax for the benefit of such cities and towns. Norfolk v. Board of Trade & Business Mens' Ass'n., 109 Va. 353, 63 S. E. 987. ■Where acts not inconsistent. — Where power is conferred upon a town by the act of incorporation to grant licenses for the retail of spiritu- ous liquors the statute conferring it will not be regarded as repealed by another enactment passed by the same legislature, a few months later prohibiting the sale of Buch liquors within a designated distance of cer- tain specified churches it not appear- ing that any of the churches are within the town so incorporated. Hart v. State, 88 Ga. 035. 15 S. E. 684. o C § LICENSES— MUNICIPAL POWEKS. [§ 225 vest the power in other officials. 2 And a city may also be ousted from the exercise of assumed and unwarranted corporate powers in indirectly levying and collecting license taxes on those engaged in the unlawful sale of intoxicating liquor within the city. 3 2. Fitzgerald v. Hurley, 180 Mass. sums of money paid from time to 151, C>1 N. E. 815. time in stipulated sums, in the form 3. State v. City of Coffey ville, 78 of simulated fines and forfeitures, Kan. 599, 97 Pac. 372, so holding persons were permitted to carry on where it was alleged that for certain such unlawful business. OBTAINING OF LICENSE OENEBALLY. LVJ CHAPTEK XI. OBTAINING OF LICENSE GENERALLY. Section 226. Right to license generally— renewal. 227. Strict compliance with law essential to right— payment of fee. 228. Necessity of obtaining license. 229. Inability to obtain license — effect of. 230. Refusal to issue license — effect of. 231. Form of license generally. 232. More than one license may be required. 233. More than one license — liquors sold in connection with other business. 234. Licenses for hotels and taverns. 235. To whom license may issue — corporations. 236. To whom license may issue — foreign corporations. 237. To whom license may issue — partners. 238. To whom license may issue — women. 239. Removal permits — application for. 240. Applicant must possess requirements— fitness. 241. As to character of applicant. 242. As to the petition or application. 243. Time of filing petition. 244. Petition description and location of premises. 245. Petition — statements as to applicant. 246. Petition — false statements — omission to answer. 247. Petition defective — amendment. 248. Petition — recommendation — signing of. 249. Petition — freeholders— who are. 250. Petition — freeholders must be bona fide. 251. Notice of application — necessity of. 252. Notice of application— necessity of publication of. 253. Notice of application— sufficiency of publication. 254. As to consents generally. 255. Sufficiency of consent— signers. 256. Consents of owners of dwellings— sufficiency and necessity of. o 7() OBTAINING OF LICENSE GENERALLY. [§ 226 Section 257. Exemption from obtaining consents — New York Liquor Tax Law. 258. Within certain distance — nearest entrance — determining distance and entrance. 259. Words " church " and " schoolhouse " as used in license laws construed. 260. Remonstrances generally. 261. Remonstrances — persons authorized to remonstrate. 262. Remonstrances — signing of. 263. Remonstrances — right to withdraw from. 264. Remonstrances — form and sufficiency of. 265. Remonstrances — hearing of — procedure — appeal. 266. Remonstrances — burden of proof. 267. Mode of testing validity of license — collateral attack — estoppel. § 226. Right to license — generally — renewal. No one has a property right to have issued to him a license to sell intoxicating liquors. 1 Such a license is not a privilege or right that any citizen may demand or have for the asking, but is rather in the nature of a favor that may or may not be granted by those in authority, in accordance with the laws of the state. 2 And where the right to obtain a license is limited by a statutory provision which requires the question whether intoxicating liquors may be sold at retail to be first submitted upon petition at the annual municipal election and answered in the affirmative by the majority of the qualified voters, no valid license can be issued except in accordance with such provision. 3 So the order of a county court to its clerk to issue license to retail spirituous liquors to an applicant, does not, of itself, authorize the applicant to retai], but only authorizes the issuance of a license to do so, after tin- applicant shall have complied with the prerequisites of the law.' lint where the state legalizes the business of selling liquors and an individual citizen is denied the right to engage in it in a 1. Plumb v. Christie, 103 Ga. 686, 3. State v. Mcllvenna, 21 S. D. 30 S. E. 75!), 42 L. R. A. 181. 480, 113 N. W. 878. 2. Sehwirman v. Town of High- 4. Brown v. State, 27 Tex. 335. land Park, 130 Ky. 537, 113 S. W. § 226] OBTAINING OF LICENSE GENERALLY. 271 place and under conditions where and under which others having no better qualifications than he are so engaged, the law, it is said, if any law there be authorizing such denial, has no just founda- tion in reason or in the police power of the state, for it depri one citizen of the right to earn his livelihood by means of a lawful calling whilst according that right to others similarly situated, and in so doing deprives him of the equal protection of the law and of his liberty without due process of law and oversteps those restrictions upon legislation which are said to be inherent in the nature of American institutions. 5 In New Jersey the right to a renewal of a license to sell intoxicating liquors in cities of the second class upon the petition of an applicant without the rec- ommendation of freeholders, is confined to the person to whom the license was originally granted and a transferee of such license for an unexpired term is not entitled to such renewal, but in In- case it is an application for a new license and he must furnish the certificate of the required number of freeholders. 6 5. State v. City of New Orleans, 113 La. 371, 36 So. 999. Where a person has complied with the law of the state in obtaining a county license authorizing him to sell i liquors within a certain city, such city has no power to refuse him a city license where he has presented his county license to the proper mu- nicipal authorities, filed his bond with the county clerk and paid to the city treasurer the amount re- quired by the city ordinance for such license. Territory v. Robertson, 19 Okla. 14!). 92 Pac 144. r,i a i mm. of i.k i:mi: <,i:m:i;ally. confer no rights upon, or protection to, the licensee. 10 And under a statute providing that before a license shall be granted " the applicant shall pay to the collector, and produce his receipt for the amount of money and fees specified," where the judgment of the county court granting the license to a person shows af- firmatively that the license tax was not paid, it is void for want of jurisdiction and the license granted is void. 11 § 228. Necessity of obtaining license. When the law requires a license as a condition precedent to engage in the liquor traffic a strict compliance with such law is necessary. 12 So it is a valid exercise of the police power to require that a license be obtained by a druggist for the privilege of retailing spirituous and vinous liquors. 13 And a statute may make it a prerequisite to the right to use liquors in compounding medicines that a license shall be obtained. 14 And a place used for the storage of liquors and from which they are sold to retail dealers in the same packages as received from a brewery has been held to be a place for which a license must be procured under a law imposing a tax upon each place where the business of trafficking in liquors is carried on. 15 But dispensary commis- sioners under a local dispensary act are held to be government i<>. Spake v. People. 89 111. G17. 22 Fla. 1; Johnson v. State, 60 Ga. Where the statute regulating the (134: Bingham County v. Fidelity & granting and issuance of licenses does D. Co., 13 Ida. 34, 88 Par. 829; City not authorize the licensing board to of Montpelier v. Mills. 171 Ind. 175, accept less than the prescribed amount 85 N. E. G. before issuing the license, although The mere fact that one keep- in- the license may cover only a pari of toxicating liquors for home consump- the current license year, the pay- 1 ion will not authorize him to sell or ment of the full fee prescribed be- keep for sale intoxicating liquors fore the license issues is a condition without a license or permit. Holt v. precedent to the validity of such State. 62 Neb. 134, 86 X. \V. 1073. license. State v. Hammel. 134 Wis. 13. Commonwealth v. Fowler. 98 61, 114 X. W. 97. Ky. 648, 34 S. W. 21. 11. Alexander v. State. 77 Ark. 14. State v. Gray, 61 Conn. 39, 22 294. 91 S. W. 181. Atl. 675. 12. State v. County Commissioners, 274 OBTAINING OF LICENSE GENERALLY. [§ 229 officials and not liquor dealers within the meaning of a taxing act. 16 § 229. Inability to obtain a license — effect of. The fact that a license to sell intoxicating liquors cannot be obtained gives no right to a person to sell without one, where a license to sell is necessary to confer such right. 17 So in Missouri it has been decided that the fact that there was no officer or tri- bunal in St. Louis authorized to grant a saloon license was no defense to a prosecution for selling intoxicating liquors at retail in that city in violation of the license laws of the state. 18 And the inability to renew a license owing to the inability of the official, having authority, to issue it, does not entitle a person to sell without a license. 19 And in a case in Indiana it was decided that the fact that there was no provision for obtaining a license to 15. Reyman Brew. Co. v. Bristor, 92 Fed. 28. Compare Hanson v. Luce, 50 Ohio St. 440, 34 N. E. 435, as to right to store where no purchases are made. 16. Dispensary Commissioners v. Thornton, 106 Ga. 106, 31 S. E. 733. The court said: "The dispensary act itself not imposing such a burden upon these commissioners we do not think the power of levying the tax can be derived from the general tax act of the state. An examination of the dispensary act itself will show that the commission could not prop- erly be classed with liquor dealers under the tax act. No sales under tliis local act can ever be allowed for private gain. * * * All the proceeds of the dispensaries must be turned over to the county and town au- thorities and the requirment to estab- lish dispensaries is mandatory. We do not mean to say that the legisla- ture cannot impose a tax upon such a business conducted in the public interest. That question is not now before us. What we do decide is, that there is no existing law in this state which by fair and reasonable con- struction, imposes any tax upon the business of dealing in liquors through the medium of this public dispensary." Per Lewis, J. 17. Indiana. — Common Council v. Fairchild, 1 Ind. 315. Kentucky. — Rosenham v. Common- wealth, 8 Ky. Law Rep. 519, 2 S. W. 230. Louisana. — State v. Brown, 41 La. Ann. 771, 6 So. 638. Michigan. — Smith v. Adrian, 1 Mich. 495. Minnesota. — State v. Kantler, 33 Minn. 69, 21 N. W. 856. Missouri. — State v. McNeary, 88 Mo. 143. Nebraska. — Huntzinger v. State, 39 Neb. 653, 58 N. W. 194. is. State v. McNeary, 88 Mo. 143. 19. Reese v. City of Atlanta, 63 Ga. 344. § 230] OBTAINING OF LICENSE GENERALLY. 275 sell liquors upon the Ohio River did not authorize a sale of such liquor thereon without a license. 20 So in prohibition districts of a state the law in regard thereto must be obeyed, and a person cannot set up in defense to an indictment for selling without a license that the sale was in such a district. 21 § 230. Refusal to issue license — effect of. Though a person may have complied with the necessary acts on his part to the issuance of the license, yet the fact that the authorities refuse to issue the same is no protection to him, where he engages in the traffic, even though the refusal is arbitrary, as in such a case he has his remedy, ordinarily by mandamus to compel its issuance. 22 Where it is made unlawful to sell liquors without having first procured from the common council a license to do so, the obtaining of the license is a prerequisite to the exercise of any right to engage in such traffic, and the refusal to hear the application and to issue the license is held to be no defense for selling liquor without a license. 23 And in some cases it is decided where an ordinance directs the issuance of a license upon the doing of certain acts by an applicant, that the license if issued would only be evidence that such party had complied with the requirements of the ordinance, and that a formal license is not necessary where there has been the required compliance to protect the licensee. 24 20. Welsh v. State. 126 Ind. 71, 25 Missouri.— State v. Huntley. 2!) X. E. 883, 9 L. R. A. 664. Mo. App. 278. 21. State v. Tucker. 45 Ark. 55. Texas.— Curry v. State. 28 Tex. 22. Florida.— Roberts v. state. 26 App. 477. 13 S. W. 773. Fla. 360, 7 So. 861. 23. City of Montpelier \. Mills Georgia.— Brock v. State. 65 Ga. 171 Ind. 175, 85 N. E. 6. 437. 21. Prather v. People, 85 111. 36. Illinois.—- Kadgihn v. City of See also State v. White. 23 Ark. Bloomington, 58 111. 229. 275, holding where it appeared that Minnesota. — State v. Cron, 23 an applicant had complied with all Minn. 140. See Jordan. City of v. the requirements of the statute that Bespalec, 86 Minn. 441, 10 N. W. though it was not proper for him to 1052. commence retailing before the li- 276 OBTAINING OF LICENSE GENEEALLY. [§§ 231,232 § 231. Form of license generally. Where the statute requires a license to be in writing there must be a compliance therewith and one cannot justify sales under a parol license. 25 So where the only license permitted is one authorized by a writing signed by certain officials, in which writing the person and place licensed are specified, the intangible right involved in a license can be created in no other way and a person who does not have the writing signed as required, in which he is licensed to sell does not have a license for the sale of liquors and such sales by him are illegal. 26 § 232. More than one license may be required. A person may be required to take out a license both from the state under a general law and also from the city having the power to license, before he will be authorized to engage in the liquor traffic, as the delegation to a city of the power to license, tax and regulate does not deprive the state of its general power to control the traffic by also requiring a compliance with the general license cense was issued the jury were war- ranted in finding no criminal viola- tion of the statute in so doing. 25. Lawrence v. Gracy, 11 Johns. (X. Y.) 179. See Murphy v. Nolan, 126 Mass. 542, holding a substantial compliance with the statute as to the form of a license is sufficient. 20. Connecticut Breweries Co. v. Murphy, 81 Conn. 145, 70 Atl. 450. So where the statute requires that the license shall set forth "the build- ing in which the business 13 to be car- ried on " a license which sets forth the name of the street only is defect- ive and will not justify sales under it. Commonwealth v. Merriam, 136 Mass. 433. But see Goforth v. State, 60 Miss. 74, holding that a code provi- sion that a license shall specify the house in which the business of re- tailing is to be carried on, is di- rectory merely to the officer issuing it. So in Texas it is decided under a statute which provides that " the par- ticular place or house where the liq- uor is to be sold shall be designated in the license " that a license which designates the town in which the liq- uors are to be sold and which fails to designate the particular house is valid. Green v. Southard, 94 Tex. 470, 61 S. W. 705; Pearce v. State, 35 Tex. Cr. 150, 32 S. W. 697. In an early case in North Carolina it was held that a statute requiring a license to set forth the one place in the county was sufficiently complied with where the name of the town was given. State v. Gerhardt, 48 N. C. 178. § 232] OBTAINING OF LICENSE GENERALLY. 277 laws of the state.- 7 And under the laws of a state it may be necessary to obtain both a city and a county license, and where such is the law a license from only one of such authorities is not ;i protection to the person so selling so far as the power of the other jurisdiction is affected. 28 But in an early case in Kansas it is decided that where a statute provides for the issuance of licenses by both the county and city authorities but does not clearly require that a person shall procure more than one license it will be construed as requiring one engaged in such traffic in a city to obtain a city license and one engaging in business outside of a city to obtain a county license. 29 And it has been decided where a city is empowered to exact the payment of a license fee that having once determined the sum to be paid and having issued a license and received the money therefor it cannot exact an addi- 27. Alabama. — Davis v. State, 4 Stew. & P. (Ala.) 83. Georgia. — Decker v. McGowan, 59 Ga. 805. Kentucky. — Freeman v. Common- wealth, 8 Bush (Ky.) 139. Louisiana. — State v. McAdams, 106 La. 720, 31 So. 187. Missouri.— State v. Millard, 30 Mo. App. 251. \ < • Fork. — Furman v. Knapp, 19 Johns. (X. V.) 248. The grant of a license by one juris- diction does not authorize the person to whom it is granted to violate the law of another jurisdiction. In im- posing 'iie restriction there is neither an express nor an implied understand- ing thai no other jurisdiction shall refrain from imposing a restriction, in the form of a license, upon those engaged in selling intoxicating liq- uors. Lutz v. City of Crawfords- ville. 109 Ind. AM. 10 X. E. 411. Per Flliott. C. J. 28. M«Ua ma.— State v. Estabrook, li Ala. 653. California. — In re Lawrence, 69 Cal. 608, 11 Pac. 217. Colorado. — People v. Raims, 20 Colo. 489, 39 Pac. 341 ; citing Heins- sen v. State, 14 Colo. 228, 23 Pac. 995. Georgia. — Mayor v. Conly, 32 Ga. 211. Indiana. — Wagner v. Town of Garrett, 118 Ind. 114. 20 X. E. 706. Kentucky. — Commonwealth v. Hel- back, 101 Ky. 167, 40 S. \V. 245. Louisiana. — Benefield v. Hines, 13 La. Ann. 420. Minnesota. — State v. Cron, 23 Minn. 140. Missouri. — State v. Harper; ">s Mo. 531. North Carolina. — State v. Propst, 87 N. C. 560. South Carolina. — State v. Mancke. 18 S. C. 81. Wyoming. — State v. City Council. 7 Wyo. 417, 52 Pac. !i7f). 40 L. R. A. 710. 20. state v. Pittman. 10 Kan. 593. 078 OBTAINING OF LICENSE GENERALLY. [§ 233 tional amount and require the licensee to take out a second license covering the same period. 80 § 233. More than one license — liquor sold in connection with other business. The liquor traffic though conducted in connection with an- other business is nevertheless considered as a distinct one for the purposes of taxation. 31 So though a city may have sole and exclusive power to license, tax and regulate dram shops and tippling houses, a merchant who sell liquors in connection with his business is not excused by the fact of his having a city license from complying with such- a state law. 32 And a separate license may be required of one who carries on the business of selling liquors in connection with a confectionery business. 33 And it is said to be common knowledge that the business of selling liquor is not such a customarily inseparable and necessary part of the business of a wholesale grocer that legislation cannot separate them when united and tax them separately. 34 Again one may be required to pay for both a wholesale and retail license where he is both a wholesale and retail dealer. 35 And where a statute provides for a license for different classes of traffickers in liquors, such as a trader's license for sale of quantities in not less than a pint, and an eating-house license for sales in quantities less than a pint, the law will not be construed as intending that a person paying for a license for one class shall enjoy the privileges coferred upon the other class without the payment of the license required for such sales. 36 But where a statute provides that a 30. Ex parte Schmitker, 6 Neb. 33. City of New Orleans v. Jane, 108. 34 La. Ann. 667. 31. City of Mobile y. Richards & 34. City of Mobile v. Richards & Sons, 08 Ala. 594, 12 So. 793; Burch Sons, OS Ala. 594, 12 So. 793. v. Mayor, 42 Ga. 596; Kelly v. 35. Flournoy v. Grady, 25 La. Ajm. Buyer," 7 Lea (Tenn.) 180. 591. 32. State v. Millard, 39 Mo. App. 36. State v. Cahen, 35 Md. 236. 251. < L »:»l] OBTAINING OF LICENSE GENERALLY. 279 merchant may sell at his storehouse liquors in quantities less than a quart upon obtaining a license it has been decided that before one is required to obtain a license to so sell whiskey he must be engaged in merchandising and in the sale of other things than spirituous liquors. 37 § 234. Licenses for hotels, and taverns. By statute a hotel keeper or a tavern keeper may be required to take out a license to sell liquors in connection with the keeping of such hotel or tavern. 38 And the signing of the application by a certain number of freeholders for a license to sell liquors, in connection with the hotel or inn business is in some cases neces- 37. Commonwealth v. Wheeler, 79 Ky. 284. 38. Page v. State, 11 Ala. 849; Beaswell v. Commonwealth, 5 Bush (Ky.) 544; Savier v. Chipman, 1 Mich. 116; Matter of Ryon, 85 App. Div. (N. Y.) 021, 83 N. Y. Supp. 123 ; Overseers of Poor v. Warner, 3 Hill. (N. Y.) 150. Word " tavern " construed. — The word " tavern " as used in a li- censing act will where such appears to be the intention of the legislature be construed as applying to and coin- prehending all hotels and houses that entertain and accommodate the pub- lic for compensation. St. Louis v. Siegrist, 46 Mo. :>!>:?. The question whether a build- ing in the city of New York conies within the definition of a hotel so as to entitle the owner to a liquor tax certificate i- i" be determined by the rovisions (§ 31) of the Liquor T>\ Law and not by the definition of a Intel as given in the Building Code of the city. Matter of Clement, 129 App. Div. (N. Y.) 229, 113 X. V. Supp. 392, holding that when such a building in the city of New York con- tains at least ten bedrooms above the basement, exclusive of those occupied by the family and servants, as re- quired by section 31 of the Liquor Tax Law, and complies with the other re- quirements of the section the owner is entitled to a certificate although it does not come within section 10 of the Municipal Building Code which de- fines a hotel as a building having more than fifteen sleeping rooms above the first story. Right to refuse license to sell in restaurants. — In California it has been decided that it i< within the lawful power of the police com- missioners of San Francisco to with- hold from restaurant keepers a license to sell liquors at retail in their restau- rants no matter how great the pecun- iary los^ caused to their business and thai it is lawful fin- any person, by legitimate persuasion or argument, to endeavor t>> prevail upon commis- sioners tn refuse a license although such person was actuated by a malici- ous intent to injure the restaurant keepers and cause them pecuniary In—. People v. Schmitz, 7 CaL App. 330, 94 Pac. 4(i7. 419. 280 OBTAINING OF LICENSE GENERALLY. [§ 235 sary to confer jurisdiction on the court to grant such license. 39 And statutes have in some states been passed making the right of an applicant for a license in connection with a hotel or tavern dependant on the applicant having the necessary accommodations for guests. 40 An act, however, providing for the obtaining of a license by a tavern keeper may be of such a character as to permit one who has obtained such a license to sell liquors without ob- taining an additional license. 41 And though a corporation formed to establish and maintain a hotel may be granted a license, one will not be issued where its property is in the hands of a receiver. 42 § 235. To whom lisense may issue — corporations. The words " person or persons " have been construed to mean corporations within the meaning of a law providing for the grant- ing of licenses. 43 So under a statute authorizing the county com- 39. Amerman v. Hill, 52 N. J. L. 326, 19 Atl. 789. 40. People v. Hartman, 10 .Hun (N. Y.), 602. 41. Hirn v. State, 1 Ohio St. 15. 42. Cambridge Spring's Co. Li- cense, 20 Pa. Co. Ct. 564. 43. Gulf Brewing Co's. License, 11 Pa. Co. Ct. R. 346. A domestic corporation is a resident citizen to whom license may be granted. " The residence of a corporation is created for it by act of law, and cannot be changed by act of the corporation. A more per- manent residence than that of a do- mestic corporation in the state which creates it can hardly be conceived." Greenough v. Board of Police Comm'rs of Tiverton (R. I. 1909), 74 Atl. 7s.-,. Per Dubois, C. J. Where by statute " person " in- eludes a corporation or license to sell liquor will be granted to a corpora- tion. In re D. W. Lynch Co. (Del. 1909), 75 Atl. 41. A dramshop license may be issued to a corporation where it is provided by statute that the word " person " or " persons " as well as all words re- ferring to or importing persons may extend and be applied to bodies politic and corporate as well as individuals. People v. Heidelberg Garden Co., 233 111. 290, 84 N. E. 230. In Nebraska a license may be granted to a corporation to vend in- toxicating liquors at wholsesale but no such authority exists for licens- ing a corporation to engage in the retail traffic. In re Hastings Brew- ing Co. (Neb. 1908), 119 N. W. 27. Though a brewing corpora- tion cannot be licensed to keep a dramshop it is not unlawful for such a corporation to lease premises for the purpose of having its beer sold in them. Conservative Realtv § 230] OBTAINING OF LICENSE GENERALLY. 281 missioners to license in writing suitable "persons" to sell in- toxicating liquors, a corporation may be licensed. 44 And a rail- road company with power under its charter to purchase railway cars with all convenient appendages and supplies for persons traveling therein may under a license to sell intoxicating liquors furnish the same to persons traveling in its cars. 45 In Penn- sylvania it is decided that a corporation authorized by the laws of that state to engage in the brewing business may be granted a license to sell its product as a wholesale dealer at a location not the place of manufacture and this despite the fact that it may have a similar license in another county. 46 Again a statute providing that any corporation chartered and organized as a bona fide social club may upon payment of the tax stated dis- tribute intoxicating liquors among its members is a general law and not within the meaning of a constitutional provision for- bidding the legislature to pass special laws. 47 § 236. To whom license may issue — foreign corporations. A foreign corporation may, it is decided, engage in the liquor business upon procuring the necessary license, to which they are entitled in the absence of a statutory inhibition. 48 And a brewing company in one state which keeps beer in storage in a city in another state, and through its agents delivers the same to its cus- tomers in the city from time to time, perfects and completes the sale in the city and becomes subject to its license laws. 49 But in Pennsylvania it is held that a foreign corporation is not a citizen Co. v. St. Louis Brew. Ass'n., 133 47. Norfolk v. Board of Trade & Mo. App. 261, 113 S. W. 229. Business Mens* Assn., 109 Ya. 353, 44. Connecticul Breweries Co. v. 63 S. E. 987. Murphy. 81 Conn. 145, 70 Atl. 450. See chapter post herein as to sales 45. People v. Pullman Car Co., 175 by social clubs. Til. 126. 51 N. E. 664, 64 L. R. A. 48. Enterprise Brewing Co. v. 366. Grime, L73 Mass. 252, 53 X. E. 855. 46. Brewing Company's License, 14 < ! ». J u ng Brewing Co. v. Frankfort, Ta. Super. Ct. 188. 100 Ky. 109, 38 S. W. 710. 2S2 OBTAINING OF LICENSE GENERALLY. [§§ 237,238,239 of the state within the meaning of the constitution and that there is no abuse of discretion in refusing a license. 50 § 237. To whom license may issue— partners. A partnership may be granted a license. 51 But a provision of a city charter that but one license shall be required for partners trading, or business done under firm name, merely authorizes a license to partnership and does not operate to exempt one from license as a wholesale dealer who has procured license as a retail dealer. 52 And under a statute providing that a license may be granted to " a law-abiding, assessed, taxpaying male citizen above twenty-one years of age " it is held that a partnership is not entitled to a license. 53 § 238. To whom license may issue — women. A woman being prohibited by statute from engaging in the liquor traffic commits an unlawful act if she engages therein. 54 But the liquor business being made lawful by statute, and there being no prohibition against women engaging in it, a woman is entitled to conduct such a business upon a compliance with the provisions of the law. 55 § 239. Removal permits — application for. A removal permit need not be treated as if it were a renewal license by the court as the latter grants to the same person, the same privilege at the same place while the former allows a license to sell at a different place which may be unsuitable. 50 Therefore under a statute providing that an application for a license may 60. Schoenhofen Brewing Go's. Li- 020, 70 S. W. 736. cense, 8 Pa. Super. Ct. 141. 54. Woodford v. Hamilton, 139 Ind. 51. State v. Monitean County 481, 39 N. E. 47. Court, 45 Mo. App. 387. 55. Amperse v. City of Kalamazoo, 52. Mobile v. Phillips, 146 Ala. 59 Mich. 78, 20 N. W. 222, 409. 158, 40 So. 826. 56. Bohrmann's Appeal, 81 Conn. •"•:'•• State v. Scott, 96 Mo. App. 458, 71 Atl. 502. § 240] OBTAINING OF LICENSE GENERALLY. ;»*:> be denied when it appears that there already exists a sufficient number of licensed places in the vicinity an application for a removal permit may be treated as an original application for a license when the result would be to unduly increase the number of saloons in a particular locality. 57 § 240. Applicant must possess requirements — fitness. An applicant must show he possess the requirements called for by statute and the existence of facts bringing him within the statute. 58 But unfitness to be entrusted with a license is B7. Bohrmann's Appeal, 81 Conn. 458, 71 Atl. 502. 08. Castle v. Bell, 145 Ind. 8, 44 N. E. 2; Hill v. Perry, 82 Ind. 28; Hodges v. Metcalfe County Court, 25 Ky. Law Rep. 1553, 78 S. W. 177; Application of Smith, 12G Iowa 128, 101 N. W. 875. Where it is provided by stat- ute that license to merchants, druggists or distillers shall only be granted upon satisfactory evidence that the applicant is in good faith a merchant, druggist or distiller the burden of showing that he is such rests upon the applicant. Hodges v. Metcalfe County Court, 117 Ky. 619, 78 S. W. 177, 460. Fitness of a corporation. — In a recent case in Pennsylvania it is said in this connection " In deter- mining the fitness of a natural per- son and of a corporation very differ- ent questions arise. In the case of an individual the qualities of the man, such as moral character, tem- perate habits, business integrity, citizenship, and other kindred mat- ters are the important and frequently the controlling considerations with the court. With corporations the inquiry is different. A corporation has no personal attributes, and must be judged by its corporate acts. * * * Of course a corporation made fit by the act of incorporation to en- gage in the manufacture and sale of liquor may become unfit within the meaning of the license laws by corpo- rate acts committed in violation of law by its directors, officers, and au- thorized agents. In this sense the fitness of a corporation presenting an application for a license may be inquired into. * * * The only method of establishing the unfitness of a corporation is to show that in the conduct or management of its busi- ness it has been guilty of violating the law. It is clear therefore that in the hearing of such an application, numerously signed petitions or remon- strances by persons wit limit knowl- edge of any unlawful act or acts having been committed should have no weight in determining whether the applicant had been quilty of violat- ing the law." In re Indian Brewing Co.'s License I Pa. S. < !. 1909), 75 Atl. 29. Per Elkin, J. "Where an application for a hrewer's license is made in Penn- sylvania the sole question is that of the applicant's fitness. In ,v Indian Brewing I lo.'s Li© use ( Pa. S. C. 1909), 75 Atl. 29. Statutes not conferring arbi- trary power. — It has been decided 284 OBTAINING OF LICENSE GENERALLY. [§ 241 not shown by the fact that the bond given to procure it and ac- cepted in good faith and approved, was invalid owing to the failure of the principal to sign the same. 59 And an ex-officio head of police or an alderman has been held not to be a police official within the meaning of a statute forbidding police offi- cials from being interested in the manufacture or sale of spirit- uous liquors. 60 § 241. As to character of applicant. The good moral character or standing is in some states made a requisite to the granting of a license and ordinarily this ques- tion is one for the licensing authorities to determine in the exercise of their discretion. 01 And the moral character of an applicant being directly put in issue by the statute, it is decided that an applicant must prove by a preponderance of evidence that he is that a law which confers on county commissioners the right to grant or refuse permission to carry on other business in the same room where in- toxicating liquors are sold when con- strued with another act which makes the granting of such permission de- pend on the personal fitness of such applicant is not open to the objection that it confers absolute and arbi- trary power upon the comissioners. State v. Gerhardt, 145 Ind. 439, 44 X. E. 4G9, 33 L. R. A. 313. Calling -witnesses as to fit- ness of applicant.— The rule seems to be recognized in Indiana of the power of the board of commissioners or the court on appeal, in an ex parte proceeding to secure a license, to call on its own motion some particular witness or witnesses and examine them, or cause them to be examined, in regard to the fitness of the appli- cant to be intrusted under the law with a license. State v. Gorman, 171 Ind. 58, 85 N. E. 763. Question is one for jury. — The question of the fitness of an appli- cant is one of fact for the jury on appeal and not one of law for the court. Keiser v. Lines, 57 Ind. 431 ; See also Pelley v. Wills, 141 Ind. 688, 41 N. E. 354. 59. North v. Barringer, 147 Ind. 224, 46 N. E. 531. 60. People v. Gregg, 59 Hun (N. Y.) 107, 13 N. Y. Supp. 114; People v. Hannon, 5 i Hun (N. Y.) 617, 13 N. Y. Supp. 117. 61. Ouachita County v. Rolland, 60 Ark. 516, 31 S. W. 144. What record should show.— Where a circuit court grants a li- cense it is held in Missouri that the record should show that the appli- cant possessed the qualifications re- quired by law, these being essential to confer jurisdiction. State v. County Court, 66 Mo. App. 96. § 241] OBTAINING OF LICENSE GENERALLY. 285 a fit person to be entrusted with a license. 82 And where the ap- plication shows that the applicant is qoI a propel person, by reason of his past conduct of the business, to grant a license to, such license is properly refused. 63 The question of an applicant's unfitness is to be determined in each case by the licensing board in the exercise of its best judgment and though the action may be illegal when taken arbitrarily, yet it is not illegal from the fact alone that another tribunal might reach a different con- clusion. 64 So when the alleged respectable character and stand- ing of an applicant for a liquor license is denied, it is the duty of the licensing board to consider the acts or crimes which the evidence attributes to the applicant, and from these indices to his character determine whether he is a proper person to receive a license. 65 And the character and standing of an 62. Chandler v. Ruebelt, 83 Ind. 139; citing Goodwin v. Smith, 72 Ind. 113, 37 Am. Rep. 113n. Effect of averment in protest as to unfitness. — An averment in the protest or remonstrance to the effect that the applicant is not a suitable person to be entrusted with the sale of intoxicating liquors, is, in the absence of a motion to make more specific and certain sufficient to question the character and standing of the petitioner, and require proof by him to show that he is a person of respectable character and standing. Wat kin-, v. Grieser, 11 Okla. 302, 66 Pac. 332. ;in occasional violation. Where a petition for a license does not aver that the applicant is of good moral cbaracter and of temperate habits, it may be dis- missed upon thai ground although he has formally joined issue upon a re- monstrance which denies his good moral character upon information, and at the hearing has offered wit- nesses to prove both moral character and temperate habits. Wheelin's Pe- tition, 134 Pa. St. 554, 19 Atl. 7.").-). 64. Smith's Appeal, 65 Conn. 135, 31 Atl. 529. «•"»• Bolton v. Hegner, 82 Neb. 772. 118 X. W. 1096. The court said: " It is the purpose of our law to pre- vent persons who are not of respecta- ble character and standing from ob- taining a liquor license. When this question is at issue, a licensing board should make diligent inquiry. They are not limited to the general reputa- tion of (be applicants but must take into consideration whatever ignoble nets or crimes the evidence may at- tribute to them. The licensing au- thorities mii-1 determine whether the acts and conducl shown as indices to his character are sufficient to dis- qualify the applicant." Per Effer- Bon. C. 286 OBTAINING OF LICENSE GENERALLY. [§ 242 applicant being material facts to be shown in order to entitle him to a license, it is proper to show as affecting his character and standing specific acts of criminality or immorality. 66 So one who is frequently under the influence of intoxicating drinks and who during the preceding year permitted gambling in his place of business is not a man of respectable character and stand- ing within the meaning of the statute, and therefore not entitled to a license to permit him to sell such liquors. 67 But occasional indulgence in intoxicating liquor is not such immorality or un- fitness as precludes an applicant from obtaining a license, nor is evidence of intoxication in the remote past. 66 And a person convicted of a felony several years prior to his application and who was subsequently pardoned and thus restored to all civil rights is not a convict under the ban of the law and should not be refused a certificate solely on that reason. 69 § 242. As to the petition or application. In many states an applicant for a license must present a written application or petition, and where this is required it is a prerequisite to the exercise of jurisdiction to issue a license, 70 Where by remonstrance it is 70. State v. Higgins, 84 Mo. App. denied that an applicant for a license 531. See Barnard v. Graham, 120 is a man of good standing and char- Ind. 135, 22 N. E. 112; Matter of acter it is the duty of the licensing Ryon, 85 App. Div. (N. Y.) 621, 83 board to see that he is of the re- N. Y. Supp. 123; State v. Newcomb, quired character and standing before 107 N. C. 900, 12 S. E. 53. issuing the license and they should In Indiana it has been decided that not indulge the presumption that he an application under the statute to is such. Batten v. Klamm, 82 Neb. sell intoxicating liquors is a statutory 379, 117 N. W. 991. civil proceeding and that in the de- 66. Watkins v. Grieser, 11 Okla. termination of the questions therein 302, 66 Pac. 332. involved the board of commissioners, • Matter of Moulton, 59 App. nearest entrance of the applicant's Div. (N. Y.) 25, 69 N. Y. Supp. 14. premises, as required by tlie Liquor 96. Matter of Lyman. 163 X. Y. Tax Law. a certificate issued thereon 536, 57 \. E. 745. will he canceled although the appli- 97. Burn's Appeal, 76 Conn. 395, cant at time of making the applica- 5G Atl. 611. tion intended to and thereafter ac- 9S. Matter of Lyman, 28 Misc. R. tually did change his entrance so that (N. Y.) 278, 59 N. Y. Supp. 828. it was more than such distance from Where an application for a liq- the dwelling. People v. Pettit, 128 nor lax certificate failed to mention a App. Div. X. Y. ) 870, 113 X. Y. building occupied as a dwelling Supp. 243. within two hundred feet of the 9!> . People v. Board of Excise, 91 092 OBTAINING OF LICENSE GENERALLY. [§ 248 facts required by statute to be stated in an application are not set forth it is too late to cure the defect by first alleging such facts in the petition upon which the certiorari is granted. 1 And the court is not bound to allow an amendment to a petition to cure a defect which is fatal. 2 So where the legislature has made it an essential that the name of the owner of the premises must appear in the petition an omission to state it is held to be a material defect, and the right to ament or cure such defect is not one which the petitioner may claim as a matter of course. 3 But in case of some slight irregularities it has been held that an amendment will be allowed. 4 And though jurisdictional facts do not appear on the face of the petition it has been held suffi- cient if they are shown by other parts of the record. 5 And though an application for a license is defective in not stating that the applicant desires to sell liquors in certain quantities to be drank on the premises and is also made on a printed blank and fails to make the proper insertions and erasures therein such defects are held not to preclude a recovery on a proper statutory bond for breach thereof by sale to a minor. 6 § 248. Petition — recommendation — signing of. Where it is required that a petition for a liquor license shall Hun (N. Y.), 94, 36 N. Y. Supp. cense, 9 Pa. Co. Ct. R. 303. gyg 4. A petition may be amended Where the affidavit required of to cure inregularities such as in re- an applicant for a license omits some spect to the description of the prop- of the statements which the statute erty or the attestation of the justice provides that it shall contain it does who administered the oath. Rahn not authorize the issuance of such Township Licenses, 13 Pa. Dist. Rep. license, and the license is therefore 547. void. Russell v. State, 77 Ala. 89. An applicant may amend his peti- 1. People v. Board of Excise, 91 tion hy filling U p the blank as to his Hun (N. Y.), 94, 30 N. Y. Supp. "present residence." In re Fisher's 678. License, 11 Pa. Dist. Rep. 520. 2. Bailey, Nease & Nester's Li- 5. State v. Cautborn, 40 Mo. App. censes, 5 Pa. Dist. Rep. 172. 94. 3. Miller's License, 13 Pa. Super. 6. Castellano v. Marks, 37 Tex. Civ. Ct. 273. See also Donmoyer's Li- App. 273, 83 S. W. 729. § 248] <>i;taini\<; of u< i:nsk \i.ly. 293 be signed by a specified number of persons of a certain de.signiitr-d class, or that there must be a recommendation so signed such signatures are essential to the granting of a valid license. 7 So it "• Arkansas. — Ex parti Coe, 19 Ark. 088. Florida.— State v. D'Alemberte, 30 Fla. 545, 11 So. 005; State v. County Commissioners, 22 Fla. 3G4. Illinois. — Harrison v. People, 195 111. 466, (53 N. E. 191. Kentucky. — Commonwealth v. El- more, 22 Ky. Law Rep. 510, 58 S. W. 369. Mississippi. — Rogers v. Hahn, 63 Miss. 578; House v. State, 41 Miss. 737. Missouri. — Tanner v. Bugg, 74 Mo. App. 106; State v. Heege, 37 Mo. App. 338. Nebraska. — Somers v. Vlazney, 64 Neb. 383, 89 N. W. 103G ; State v. Weber, 20 Neb. 4G7, 30 N. W. 531. Neiv Jersey. — Bachman v. Phillips- burg, 68 N. J. L. 552, 53 Atl. 620. Pennsylvania. — Forst's License, 208 Pa. St. 578, 57 Atl. 991. A statute forbidding the granting of a license unless the applicant shall have been recommended to the one au- thorized to issue licenses by the grand jury lias been held a valid exercise c the police power. Cohen v. Janett, 42 M.I. 571. Certificate annexed to appli- cation. — Where it is provided by statute thai there shall he annexed to a petition for a license a certifi- cate signed by at leasl twelve quali- fied electors of the ward setting forth thai they air acqu tinted with i he ap- plicant and that they have good rea- son to believe that the statements in the petition are true, a certificate which is signed by sixteen ] ei sufficient though four of them are not qualified electors. Schmitt's Li- cense, 37 Pa. Super. Ct. 420. In New Jersey it ha- heen de- cided that § 42 of the inns' and taverns' act which provides that the signers of a recommendation for a license shall not have recommended another applicant in the same town- ship, city or borough for the same year, is a subsisting and peramount regulation of the subject that is un- affected by "an act 1m establi h an excise department in cities of this state" or by the creation of the ad- ministrative tribunals contemplated by that act, and that it is unrepealed and irrepealable by the legislative acts of such bodies. Read v. Board of Excise Commrs. (X. J. 1008), 71 Atl. 120, construing 2 Gen. St. 1895, p. 1794, § 42 & P. L. 1902, p. 628. May combine petitions to ob- tain requisite number. — Where a petition did not contain a sufficient number of names as signers when pre- sented and considered but subse- quently more were added making the requisite number it was held immate- rial whether such names were -igned to ill.- original or an additional peti- tion as, though the proceeding would be considered irregular in judicial pro- ceedings, yel the strict rule-; of courts would in4 >e transact ing the ordinary business of the com- munity, state v. Commissioners, 20 Fla. 425. n applicant who has circulated several petitions with materially dif- ferent headings cannot select one peti- tion and by appending there;" n. on other petitions he entitled to a license. Collins v. Barrier, tit Mis~. i21. S So. 164. Signer cannot withdraw. — Sig- 294 OBTAINING OF LICENSE GENERALLY. [§ 248 is said that where the statute predicates the right of affirmative action upon a petition by persons possessing a certain qualification such as being taxpayers they have no jurisdiction to act, unless a petition is presented to them signed by persons possessing that qualification. 8 Thus it is frequently essential that a petition should be signed by a certain number of the nearest bona fide residents, 9 or of property owners, or voters of the town or city or election precinct, 10 or citizens of the town or city, 11 or of tax- paying citizens, in which case it has been decided that a require- ment that a majority of tax-paying citizens shall sign a petition means a majority of all together including males, females and minors and not a majority of each. 12 But in respect to a minor it is held in other cases that though he may have the qualification of a property owner yet he is not qualified as a petitioner on an ner cannot after petition has been presented to the licensing board, with- draw bis name and thus divest the board of jurisdiction. Orcutt v. Rein- goudt, 46 N. J. L. 337. R. State v. Heege, 37 Mo. App. 338. *>• Ballew v. State, 84 Ga. 138, 10 S. E. 623, holding that under such a requirement it is immaterial whether such persons reside in a different county from that of the applicant's residence or whether they reside within an incorporated town or city. Bach of several tenants in com- mon is a qualified petitioner for the proportionate part owned by him. People v. Griesbach, 211 111. 35, 71 N. E. 874, reversing 112 111. App. 192. 10. Ex parte Coe, 19 Ark. 688; Groesch v. State, 42 Ind. 547; Com- monwealth v. Elmore, 22 Ky. Law [;. 510, 58 S. \V. 369; House v. State, 41 Miss. 737. A statute to this effect is valid.— St ate v. Brown, 19 Fla. 563. The applicant may sign as a voter. — State v. County Commis- sioners, 22 Fla. 1. Payment of taxes as qualify- ing voter. — See Ferguson v. Brown, 75 Miss. 214, 21 So. 603, holding that under a constitutional provision that one must have paid his taxes to be a qualified voter it is immaterial that his taxes are paid by another. 11. Wray v. Harrison, 116 Ga. 93, 42 S. E. 351, holding that the term " citizens " embraces only qualified voters of the town. Rohrbacker v. Jackson, 51 Miss. 735. Citizens must sign their own names. — Where a statute requires that a petition shall be signed by a certain number of citizens it is held that they must write their own names and that an authorized signing by another or the use of marks is not sufficient to confer jurisdiction upon the court. Grant's License, 2 Pa. Co. Ct. R. 87. 12. State ex rel. Pulliam v. Fort, 107 Mo. App. 328, 81 S. W. 476. § 249] OBTAINING OF LICENSE GENERALLY. 29i application for a license. 13 Again an applicant should sign the petition where required to '1" so by statute. 1 ' § 249. Petition— freeholders — who are. A frequent statutory provision is that the petition or recom- mendation for a license must be signed by a certain number of householders or freeholders. 15 As to what constitutes one a free- holder it is said in a recent case in Xebraska, " In order to be a freeholder a person must have a property right and title to real estate amounting to an estate of inheritance or for life or for an indeterminate period. What is required is title to the property, and not simply a contingent or an expectant estate, nor a right of occupancy or a privilege with power to prevent alienation or in- cumbrance by the holder of the legal title." 16 So a person holding 13. People v. Griesbach, 211 111. 35, 71 N. E. 874, reversing 112 111. App. 192. Infant children although resi- dents and heirs to estates of inheri- tance in real estate in the precinct, arc not qualified signers of a petition for the sale of intoxicating liquors in such' precinct. Thompson v. Eagan, To Neb. 169, 97 X. W. 247. 14. State v. Scott, 96 Mo. App. 620, 70 S. W. 730. i"'. Glenn v. Lynn. SO Ala. 608, 7 So. 924; State v. Mather. 94 Iowa 42, 62 X. W. 684 : Stale v. Weber, 20 Neb. 467, 30 X. W. 531; Van Nortwick v. Bennett, 62 X". J. L. 151, -1(1 All. 689. A majority of the resident freeholders musl si'_ r n an applica- tion for a license wh,ere the statute so requires. /// re White i Neb. 1909), 123 X. W. 1034. Burden of proof as to req- uisite number. — Where the remon- strance denies thai the petition is signed by the requisite number of resident freeholders the burden is upon the applicant to show that it is signed by the required number of qualified petitioners. Brown v. Lutz, 36 Neb. 527, 54 X. W. 860. !*>• Campbell v. Moran, 71 X'eb. 615, 99 N. W. 498. Per Holcomb, C. J., quoted in In re Colin (Xeb. 1909). 121 X. W. 107. See also Starkey v. Palm, SO Xeb. 393, 114 N. W. 287. Wherein it is declared that the statutory qualifi- cation of a freeholder as a petitioner upon an application for a saloon li- cense does not require evidence so conclusive as would be requisite to enable him to recover in an ejectment againsl an adverse claimant but it is sufficient if he has by record or documentary evidence, or both, and in g 1 faith claims, and believes himself, to have a freehold estate in lands within the prescribed district within which lie resides. A wife living with her hus- band on land, the title to which i~ in him and which is occupied by them jointly as a family homestead is not a freeholder. And this is true as to 296 OBTAINING OF LICENSE GENERALLY. [§ 250 a life estate is a freeholder within the meaning of a statute re- quiring a petition for a license to be signed by freeholders. 17 But a person holding an executory contract giving the right to pur- chase land upon a strict compliance with the terms of the contract in the future is not a freeholder. 18 And the wife of an applicant for a liquor license, even though she may be a freeholder, is not a qualified petitioner within the meaning of the liquor law, for the reason that the signer contemplated by the statute is pre- sumed to consult not only his individual inclination but the rights and interests of third persons and of the general public in the community. 19 § 250. Petition — freeholders must be bona fide. The freeholders required to sign the petition must be bona fide freeholders and not such as were made freeholders merely for the purpose of enabling them to sign. 20 So a deed for land to many a husband living with his wife on land occupied by them jointly, the legal title to which is in her. Camp- bell v. Moran, 71 Neb. 615, 99 N. W. 498. Affidavits are incompetent to prove that the petitioners for a liq- uor license are freeholders when that question is properly placed in issue by remonstrance. Batten v. Klamm, 82 Neb. 379, 117 X. W. 991. Not personally knowing ap- plicant does not disqualify. — A freeholder otherwise qualified to sign a petition for a liquor license is not disqualified because he is not person- ally acquainted with the applicant, or docs not know that he is a man of respectable character and standing in the community. In re Thompson (Neb. 1909), 120 N. W. 952. Signing after filing.— That other freeholders wore permitted to sign a petition after it was filed with the citv clerk and notice thereof was given has been held to be no error, it also being declared that it was not necessary to republish the notice after such amendment. Livingston v. Corey, 33 Neb. 366, 50 N. W. 263. 17. Harlan v. State, 136 Ala. 150, 33 So. 858. 18. in r e Cohn (Neb. 1909), 121 N. W. 107. 19- In re Powell (Neb. 1908), 119 N. W. 9. The court said: "The wife in signing her husband's petition to engage in business would not con- sider public interests as against her husband's desire for gain and her de- sire for support for herself and family, nor could she be used as a witness against him." Per Root, C. 20. i n re Cohn (Neb. 1909), 121 N. W. 107; In re Powell (Neb. 1908), 119 N. W. 9; In re Dye, 79 Neb. 149, 112 N. W. 332. One made a freeholder for the sole purpose of qualifying him as a petitioner for a liquor license § 251] ; i ■•■ OF LII ENSE GENERALLY 297 persons for a single consideration for the purpose of qualifying them for recommendation for liquor Licenses i- fraudulent and does not constitute them reputable freeholders within the stat- ute. 21 And lapse of time will not qualify a bad faith freeholder to sign a petition for a liquor license. 22 § 251. Notice of application — necessity of. Where by statute notice of an application for a liquor license is essential to confer jurisdiction to issue it, a license issued with- out the required notice is void, 23 and may be collaterally at- tacked. 24 And a statute requiring notice of an application to sell liquor in quantities less than a quart applies to merchants, druggists and distillers and an exception allowed by statute to a druggist to sell in quantities less than a quart for medicinal purposes on the prescription of a physician does not except druggists from giving notice of an application for a license to sell in such quantities for other purposes. 25 The word " prem- is not a bona fide freeholder. Marica v. Ynst (Neb. L910), 124 X. W. 4G0, citing Cohn v. Welliver, S4 Neb. 230, 121 N. \V. 107: Dye v. Raser, 79 Neb. 14!), 112 N. W. 332. Where a property owner is paid for hia consent by the appli- eanl hia signature should no! count in determining whether the requisite number of signers have been ob- tained. Theurer v. People, 211 111. 296, 71 X. E. 997. A person given apartments for the purpose of qualifying him to sign a petition as a householder is imt a householder within the meaning of the statue. Bachman v. Phillips- burg, 68 X. J. L. 552, 53 Atl. 620. 21. Austin v. Atlantic City, 48 X. J. L. US, 8 Atl. 65; Smith v. Elizabeth, 46 X. J. L. 312; In re Dye, 79 Neb. 1 19, 112 X. W. 332; net! v. Otto, 68 Neb. 652, 04 X. W. SOS: Colglazier v. McClary & Martin, 5 Neb. (Unoff.) 332, 9S N. W. 670. A person is not a qualified free- holder within the meaning of a stat- ute where he holds by a deed given to him for the purpose of qualifying him to sign a petition. Austin v. Atlantic City, 48 N. J. L. lis. :{ Atl. 65; Smith v. Elizabeth, 46 N. J. L. 312. ii-- In re Dye, 79 Xeb. 149, 112 X. W. ::::2. 23. Pisar v. State, 56 Neb. 4.V>. 76 X. W. 869; Zielke v. State, 12 Neb. 750, 60 X. W. L010; Brown v. Lutz, 36 Neb. :>27, :>( N. W. 860. 24. Pi S ar v. State. 56 Neb. 455, 76 X. W. 869. See also Brown v. Murphy, :»1 X. J. L. 250, 17 Atl. 157. 2.";. Commonwealth v. Hawkins, 98 Ky. 176, 32 S. W. 409. See Evana v. 298 OBTAINING OF LICENSE GENERALLY. [§ 252 ises " in a statute providing that an applicant for a liquor license must give a public notice thereof stating the "precise location of the premises " whereon he desires to sell is held to import a definite tract of land and the building located thereon in which he desires to sell and such notice should describe the lot on which the building stands in which the sales are to be made but need not describe the room. 26 § 252. Notice of application — necessity of publication of. Where publication of notice is required by statute this is essen- tial to confer jurisdiction upon the court. 27 So where the statute requires notice of an application for a license to be published in a newspaper in the county, having the largest circulation compli- ance therewith is essential, and such notice must be published in every issue of the paper for the time designated whether a daily or a weekly paper. 28 And where a statute requires a notice to be published in a newspaper, courts will presume that the notice is to be given in the ordinary language of the state and in a news- paper published in the same language. 29 The object of the publi- cation of a notice is to give any person who may have a valid reason why the licensee should not be granted an opportunity to come forward and state his objection. 30 The license board in the absence of authority conferred upon it has a right to designate the papers in which notice of an application shall be published. 31 Commonwealth, 95 Ky. 231, 24 S. W. lish. the notice of an application for 632. a license after additional names are 20. Kunkel v. Abell, 170 Ind. 305, permitted to be added to the petition. 84 N. E. 503. Thompson v. Eagan, 70 Neb. 169, 27. Goodwine v. Flint, 28 Ind. 97 N. W. 247. App. 36, 60 N. E. 1102. 28. State v. South Omaha, 33 Neb. Whether or not separate edi- 876, 51 N. W. 291. See also Rose- tions of a daily paper arc separate water v. Pinzenscham, 38 Neb. 835, istinet publications is a ques- 57 N. W. 563. tion of fact to be determined, from 29 « Publishing Co. v. City of Jer- the e by the license board. sey City. 51 N. J. L. 437, 24 Atl. 571. Rosewater v. Pinzenscham, 38 Neb. 30. State v. South Omaha, 33 Neb. 8:55. 57 N. W. 563. 870. 51 N. W. 291. It is not necessary to repub- 31. Feil v. Kitchen Bros. Hotel § 253] OBTAINING OK LICENSE GENERALLY. 299 § 253. Notice of application — sufficiency of publication. Where the statute requires the notice of an application for a license shall be published in a newspaper and specifies what it Bhall contain a substantia] compliance which satisfies the purpose of the statute is sufficient and an immaterial departure from the literal terms of the statute will not be permitted to invalidate the license granted. 32 So where the names of the petitioners are published it is decided that a failure to publish the marks of a few of such petitioners is not material as the publication of the names is sufficient for all practical the purposes for which the publication was intended. 33 In the case of a publication of a notice upon an application for a license to a firm it should state the names of the persons who comprise the firm where the statute requires that such a notice shall set forth the name of the applicant in full. 34 "Where the statute requires the publication of a notice giving the particular location of the premises in order that owners of land within a certain distance thereof may object, if such notice does not give it, the proceedings of license grant will be quashed on certiorari.^ The question of whether proper notice by publica- tion has been given by an applicant for license as require d by law can not be inquired into in a prosecution against such person for retailing intoxicating liquors without a license. 36 Co., 57 Neb. 22, 77 X. W. 344: Rose- statute required thai such notice water v. Pinzenscham, 38 Neb. 835, should give the applicant's nana' in 57 X. W. 563. full it was sufficienl where he gave In Oklahoma it lias been decided only the initial of Ins middle name thai the law contemplates thai the instead of writing it in full. applicant shall selecl the newspapers '•''•'•• S County l omissioners, and give his notice, and make proof 22 Fla. 1. both as to the publication of the no- .. |# ( , mmi „ mVt , aUh v _ ^ [50 tices and the circulation of the papers ^ &ss ■ g , _•■; v |.- 99 and thai the practice of having the county clerk give the notices by publi- cation IS not authorized. Watkins v. Grieser, 11 Okla. 302, 66 Pac. 332. 32. Braconier v. Packard. 136 S6, Hornaday v. state. 43 Ind. Mass. 50, holding that where the 306. :?.-.. Dexter v. Town Council of Cumberland, 17 P. 1. 222, -Jl Atl. 347. 300 OBTAINING OF LICENSE GENERALLY. [§ 254 § 254. As to consents generally. As we have already stated the legislature may require that the consents of owners within a certain distance of the proposed place or of other persons must be obtained as a condition precedent to the granting of a license. 37 So in New York it is decided that under the Liquor Tax Law the necessary consents of owners of dwellings must be filed before a certificate is issued and that the court has no power, after a citizen has applied to have a certifi- cate revoked to permit the holder to file such consents nunc pro tunc. 38 Where a provision requires the written consent of a ma- jority of the bona fide house holders or property owners within a certain distance of the proposed place it means either one or the other indifferently and without distinction. 39 The word " block " 37. See sees. 254-259 herein. Owner of fee in street as within distance. — Under a statute providing that no license shall be granted against the objection of an " owner of real estate within twenty- five feet of the premises " it has been decided that an owner of real estate on the opposite side of a street which is forty feet wide who is also the owner of the fee in the street is an owner of the fee with such a title as renders him an owner of real estate within the meaning of the statute. Moran v. Gallagher, 199 Mass. 486, 85 N. E. 579. Where the written consent of the majority of a board of police commissioners is prerequisite to the right of an official to grant a li- cense, such consent must be obtained. Purdy v. Simton, 56 Cal. 123. Consent as consideration for note. — Where the real consideration, or a part at least, for the execution of a note by a saloon keeper was the consent of an adjoining property owner to the operation of the saloon such consideration is illegal and though it may form only part of the consideration yet the contract being indivisible, the entire note is vitiated. O'Connor v. Kleiman (Iowa 1909), 121 N. W. 1088. 38. Matter of Lord, 32 Misc. E. (N. Y.) 223, 66 N. Y. Supp. 252. Examine Matter of Johnson, 18 Misc. R. (N. Y.) 498, 43 N. Y. Supp. 1074. Bight to withdraw consent.— An owner of a dwelling may revoke and cancel his consent at any time before it has been filed with, presented to, or in any manner acted upon by the officer to which the application is made for a certificate and the fact that an applicant may have expended some money in fitting out his prem- ises is held not to affect such right. Matter of Adriance, 59 App. Div. (N. Y.) 440, 69 N. Y. Supp. 314. But in Illinois it is decided that the consent of a property owner may be withdrawn before final action by the licensing board. Theurer v. Peo- ple, 211 111. 296, 71 N. E. 997. See also Green v. Smith, 111 Iowa 183, 82 N. W. 448. 39. Shepard v. City, 51 La. Ann. 847, 25 So. 542. §8 255 256] OBTAINING OF LICENSE GENERALLY. 301 as used in a statute or ordinance requiring the consent of prop' owners on both sides of tho street in the block is synonymous with the word "square" and means the territory bounded by four street-.'" § 255. Sufficiency of consent — signers. One owner duly authorized by all the owners may execute a consent which will bind the premises. 41 And the authorized agent of an owner may sign a consent for him. 42 And it has been decided that a consent of the original owners of premises made and filed and given to their tenant for an unlimited term remains effective so long as the premises are continuously occupied by the tenant for traffic in liquors, not withstanding a subsequent change in the ownership of the premises. 43 But the consent of the lessee of a building is not sufficient where the consent of the owner is re- of a building is not sufficient where the consent of the woner is re- quired. 44 § 256. Consents of owners of dwellings — sufficiency and neces- sity of. In making the estimate of the number of consents of the own- ers of buildings used exclusively as dwellings vacant dwellings designated exclusively for occupation as dwellings are to be con- sidered. 45 And a dwelling house does not lose its character as 40. Harrison v. Feople, 195 111. of the block in which such liquors 466, 63 N. E. 191. or any thereof are to be sold." See also Slater v. Fire & Police 41. Matter of Cowles, 34 Misc. R. Board of City and County of Den- (X . y.) 447. 69 N. Y. Supp. 7.J6. ver, 43 Colo. 225; 96 Pac. 554, so 42. Theurer v. People, 211 111. holding in construing a provision in 01)( . -^ j, -, , )() _ a city charter which was as follows " No license for tlie sale of spirituous ....... r • u (N. Y.) 447. 69 X. Y. Supp. 756. malt, or intoxicating liquors in liquor v rr saloons, dramshops, or tippling houses 44, Matter of Sherry, 25 Misc. R shall he granted, excepl mi the peti- < x - Y -) 361 » :, ■"' , x - v - Supp. 421. tion of the owners of a majority of *•""»• Matter of Ruland, 21 Misc. R. the real estate within the frontage 1 X. Y.) .">04. 47 X. Y. Supp. 561. 43. Matter of Cowles, 3 1 Misc. 302 OBTAINING OF LICENSE GENERALLY. [§ 257 such because the owner occasionally lets rooms by the week. 46 The half of a double dwelling may also be treated as a separate building for the purpose of obtaining the necessary consents to the conduct of the traffic in the other half. 47 And a building used exclusively as a flat for dwelling purposes is used exclusively as a dwelling where it was built ofter a business block to which it forms an addition where it does not communicate with the rest of the block. 4S But a building occupied merely to evade the stat- ute is not occupied as a dwelling and where the consent of such an occupant is one of the required ones to the granting of the certificate it will be revoked. 49 But the consents of owners of buildings used mainly for business purposes cannot be counted in determining whether sufficient consents have been procured of owners of buildings used exclusively for dwellings. 50 And where residences have long been vacant, and the character of the neigh- borhood is rapidly changing from a residence to a business section as a result of which the buildings are not likely to be again occu- pied as residences, it is not necessary to obtain the consents of such owners. 51 § 257. Exemption from obtaining consents — New York Liquor Tax Law. The ]STew York Liquor Tax Law of 1896 excepted from the obtaining of consents those places where the liquor traffic was carried on at the time of the taking effect of the act. 52 This ex- emption of consents as it affects hotels is held not to apply to a place occupied as a boarding house. 53 This privilege did not 46. Matter of Veeder, 31 Misc. R. so. Matter of Ireland, 41 Misc. R. (N. Y.) 569, 65 N. Y. Supp. 517. (N. Y.) 425, 84 N. Y. Supp. 1100. 47. Matter of Patterson, 43 Misc. 51. Matter of Townsend, 195 N. Y. R. (N. V.) 498, SO N. Y. Supp. 437. 214, 88 N. E. 41. 48. Mai for of Lyman, 20 Misc. R. 52. N. Y. Liquor Tax Law, 1896. (N. Y. ) 568, 57 X. Y. Supp. 488. 53. Matter of Harper, 30 Misc. R. 49. Matter of Lyman, 24 Misc. R. (N. Y.) 663, 64 N. Y. Supp. 524. (X. Y. ) 552, 53 X. Y. Supp. 577. g 258] OBTAINING OF LICENSE GENERALLY. 303 attach to the property in perpetuity and does nol necessarily under all circumstances run wiili the land bul it may be lost by abandonment or non-user when the facts and circumstances are such as to justify the conclusion that the owner intended to dis- continue traffic at that place. 54 An abandonment of the prem by one carrying- on a liquor business deprives him of his privileged character given by the Liquor Tax Law and a subsequent appli- cant must obtain required consents. 55 A temporary suspension, however, of business caused by fire, accident, or stress of circum- stances does not deprive one of the rights to a liquor tax certificate so secured. 50 § 258. Within certain distance — nearest entrance — determining distance and entrance. Where a statute contains restrictions against the granting of a license such as the requiring of consents of a designated class of persons within a certain distance of the nearest entrance to the proposed place of business it is decided that the distance is to be 54. Matter of Hawkins, 165 N. Y. 188, 58 N. E. 884, rev'g 54 App. Div. 617, 66 N. Y. Supp. 1132; Matter of Lyman, 34 App. Div. (X. Y.) 389, 54 N. Y. Supp. 294 j People v. Hamil- ton, 25 App. Div. (N. Y.) 428, 49 N. V. Supp. 605 j Matter of Lewis, 26 Misc. R. (X. Y.) 532, 57 N. Y. Supp. 676; Matter of Zinzow, 18 Misc. R. (N. V.l 653, 43 N. Y. Supp. 714. 55. Matter of Brewster, 85 App. Div. (N. Y.) 235, 83 X. Y. Supp. 564 : Matter of Ritchie, 18 Misc. R. (N. Y.) 341, 40 N. Y. Supp. 1106. •".<:. Matter of Kessler, L63 \. Y. 205, 57 N. E. 402. rev'g 14 App. Div. 635, 60 N. V. Supp. 1141. Effect of adoption of local op- tion. — Tin's rigW to a certificate with- out consents is a property righl and is not extinguished by the vote of the electors of the town under local option provisions of the statute. People ex rel. Sandman v. Brush, 179 N. Y. 93, 71 X. E. 731, affg 92 App. Div. 611, 86 X. Y. Supp. 1144. The court said: "Such a vote has no other effect than to suspend the traffic entirely in the town as to all places during the time specified in the statute, and when the electors reverse their deter- mination at a subsequenl town meet- ing all rights suspended are revived and are in force as completely as if the prior decisions had not been made. * * * When the electors de- cide against the traffic that decision lias no effect beyond two years and amounts to a refusal to permit the business to be carried on a1 all. but it cannol effect any other right." Per O'Brien, J. 304 OBTAINING OF LICENSE GENERALLY. [§ 258 measured from the nearest entrance regardless of intervening obstructions. 57 So though the entrance to a saloon may be around the corner and not on the street on which a church is situated yet if measured in a straight line it is within the prohibited distance, it is held to be within the inhibition of the statute. 58 And the " nearest distance " is not necessarily the entrance to the bar or barroom but includes an entrance to the building through which access may be had to the bar or barroom. 59 So where the nearest street entrance is within the prohibited distance, the fact that the sale of liquors is confined to a room in the building which is more than the distance specified in the statute is immaterial. 60 And a door which can be used as an entrance to a saloon and which is within the prohibited distance of a school does not lose its charac- ter as an " entrance " within the meaning of the statute prohibit- ing the granting of a license for a saloon with an entrance within a certain distance of a school from the fact that it is closed and locked and a license is properly refused. 61 But doorways which have been permanently closed up as where one had been nailed 57. Matter of Ruland, 21 Misc. R. v. Murray, 5 App. Div. (N. Y.) 441, (N. Y.) 505, 47 N. Y. Supp. 561; See 38 N. Y. Supp. 609, 39 N. Y. Supp. also Matter of Lewis, 26 Misc. R. 1130. (N. Y.) 532, 57 N. Y. Supp. 676; 59. Matter of McMonagle, 41 Misc. People v. Murray, 16 Misc. R. (N. Y.) R. (N. Y.) 407, 84 N. Y. Supp. 398, 38 N. Y. Supp. 609; Matter of 1068. Veeder, 31 Misc. R. (N. Y.) 569, 65 60. People ex rel. Clausen v. Mur- N. Y. Supp. 517. ray, 5 App. Div. (N. Y.) 66, 38 N. 58. Matter of McCusker, 23 Misc. Y. Supp. 903, 39 N. Y. Supp. R. (N. Y.) 446, 51 N. Y. Supp. 281. 1130. See also Matter of Zinzow, 18 Misc. Where the saloon is situated R. (N. Y. ) 653, 43 N. Y. Supp. 714. in the second story of a building Where a statute forbids the grant- it is decided that the street entrance ing of a license for a saloon on the to the building is to be considered, same street and within a certain dis- Matter of Underbill, 17 Misc. R. tance of a school, if a proposed saloon (N. Y. ) 19, 39 N. Y. Supp. 575. is in fact on the same street as a 61. Matter of Macy & Co., 5 App. school and within the specified dis- Div. (N. Y. ) 70, 38 N. Y. Supp. tance it cornea within the prohibition 1146; People ex rel. Clausen v. Mur- fchough the entrance may be upon an- ray, 5 App. Div. (N. Y. ) 66, 38 N. other street. People ex rel. Clausen Y. Supp. 903, 39 NT. Y. Supp. 1130. § 259] OBTAINING OF LICENSE GENERALLY. 305 up and another changed into a window is nol an "entrai which it* to be considered in determining whether the " nearest entrance" is within the prohibited distance as to the obtaining of consents. 02 Again where a door was cul by the owner of a dwell- ing so as to bring it within the prohibited distance and it ap- peared that such act was done after the license fee had been paid and the door was finished on the day the certificate was issued and had been made apparently to affect the right to the cer- tificate, it was decided that the door should not be considered in determining the right to the certificate. 63 In Massachusetts it is decided that where an application is made to sell liquors in a certain building the entire building is to be considered in order to determine whether within the prohibited distance of a school- house. 64 And in Rhode Island under a statute providing that u no license shall be granted to authorize the sale of any such liquors, at any building or place where the owners of the greater part of the land within two hundred feet of such building or place shall file " an objection to the granting of such license it has been decided that there being in the statute no limitation of the prescribed area to land within the state, the whole areas irrespec- tive of the boundary line of the state would be included. 65 § 259. Words " church " and " schoolhouse " as used in license laws construed. In construing the meaning of the word "schoolhouse" in a statute prohibiting the granting of a license for a saloon within a certain distance of such a building it has been determined in New York that under the liquor tax law in that state the schools in- •32. Matter of Purdy, -tit App. Div. under the Massachusetts law t lie dis- (X. Y.) 133, 57 X. V. Supp. 629. lance is to be measured from the 63. People ex rel. Scobell v. Kil- aearesl poinl of each building. See born. 35 Misc. R. (N. V. I 599, 72 also In re The Liquor Locations. 13 N. V. Supp. 133. R. I. 733. 64. Commonwealth v. Jones, 142 <; •"' , • American Woolen Co. v. North Mass. 573, 8 X. E. 603, holding that Smithfield, 28 R. I. 54ti. 68 Atl. 710. 306 OBTAINING OF LICENSE GENEKALLY. [§ 259 tended to be protected are primarily the common public schools devoted to the general and intermediate education of children ami youth and secondarily semi-public and private schools con- ducted for the same purpose, buildings in which grammar and high schools are conducted being included, but the word as used was declared not to include a building used as a registered training school for nurses. 66 But a building erected and used for a school does not fail to come within the designation of a building occupied "exclusively" as a schoolhouse merely because the teachers or some of them reside in it, 67 And the fact that the site for a school was bought years after the establishment of appel- lant's saloon, in close proximity to it and after his becoming the owner of the saloon property is of no legal consequence and does not affect the right of county commissioners to refuse to renew the license. 68 And a similar conclusion has been reached in New York in the case of the location of a church. 69 And a building is 66. Matter of Townsend, 195 N. Y. 214. 88 N. E. 41, rev'g 129 App. Div. 909, 114 N. Y. Supp. 1149. 67. People v. Murray, 148 N. Y. 171, 42 N. E. 584. See also People ex rel. Clausen v. Murray, 5 App. Div. (N. Y) 441, 38 N. Y. Supp. 609, 39 N. Y. Sup. 1130. 68. Schuster's Appeal, 81 Conn. 276, 70 Atl. 1029. 60. Construction of exemption under New York Liquor Tax !Law. — Xot applicable to one estab- lishing business subsequent to March 23, 1896, and though after conduct of iness for several years he finds a church erected within the prohibited mce. "Section 24 of the Liquor Tax Law, which prescribes the place in which traffic in liquor shall not be permitted, forbids such traffic in a place within two hundred feet of a building occupied exclusively as a church. The statute which was orig- inally enacted in 1896 provided, how- ever, that this prohibition should not apply to a place which on the 23d day of March in that year was law- fully occupied for a hotel nor to a place in which the liquor traffic was lawfully carried on at that date. No exception was made in behalf of a dealer in liquors who might lawfully establish and carry on his business in a given locality continuously for many successive years, but who might find that upon the expiration of his liquor tax certificate that a build- ing occupied exclusively as a church had been located within two hundred feet of his premises. In such a ease, of course, he would be unable to show upon his application for a new certificate, as required by the Liq- uor Tax Law, that there was no building occupied exclusively as a church within two hundred feet of his premises, and his inability to do this requires the excise commissioner in such a case, under the construe- 260] oirrAiM.Nc of 1. 1< i:\sk (,i;m;j;allv. 307 used "exclusively" for church purposes where the basement is rented to societies connected with the church and the rentals are used to maintain the church. 70 But a mission qo1 connected with any church and with which no pastor or clergyman is associated is not used exclusively for church purposes. 71 § 260. Remonstances generally. In many states provision is made by statute as to the filing of remonstrances. 72 Such a statute permitting the filing of a re- monstrance by the majority of the legal voters of the township and providing that it shall be unlawful to grant a license to such person for two years thereafter is not unconstitutional as suspend- tion of the statute adopted by the courts helow, to refuse to issue a certificate. We see no escape from the logic of the reasoning by which this result was reached at the Special Term and in the Appellate Division. That the operation of the statute in cases like the one now before us is manifestly harsh would doubtless be a cogent argument to support the proposition thai the Legislature could not have intended such effect, and might be conclusive were the language of the statute at all ambiguous; but in view of the clear phraseology of the law the contention is inadmissible, and the courts must remit those ag- grieved thereby to relief by legisla- tive action." hi re llering (X. Y. C. A.. Nov. 1909), X. Y. Law Journal, Nov. l. 1909, affirming In re Hering i X. Y. App. Div. 1909), 117 X. Y. Supp. 747. to. Matter of McCusker, 23 Misc. R. (X. Y.) 446, .",1 X. Y. Supp. 281 ; See also Matter of Zinzow. is Misc. I!. (X. Y.t 653, t:: X. Y. Supp. 714: Matter of McCusker, )7 App. Div. (X. Y.) 111. 62 X. Y. s u ,.p. 201; Matter of Lyman, 48 App. Div. (N. Y.) 275, 62 N. Y. Supp. 846. 71. People ex rel. Duetseh v. Dal- ton, 9 Misc. R. (N. Y.) 249, 30 N. Y. Supp. 407. 72. Where it is provided by law that where a remonstrance signed by a certain number of electors is made against the granting of a liquor li- cense, no license shall issue, this is a condition upon which it may or may not issue and where the remonstrance is made this alone is sufficient to de- feat the application though the ap- plicant lie able to satisfy the other conditions in connection with the ob- taining of a license. Davis v. Board of Supervisors, of Merced County, 7 Cal. App. .",71. '.'.-. Pac. 170. Application of statute. — A stat- ute regulating the -ranting of licenses and providing thai if the majority of the legal voters in the neighborhood shall protesl against the application it shall be refused has been held to apply to applications to sell by re- tail including applications to sell as hants, distillers ami druggists. Dearer v. Taylor County Court, 98 Ky. 135, 32 S. VV. 402. 308 OBTAINING OF LICENSE GENERALLY. [§ 260 in<* the general license law. 73 And a licensing board must act within the limits of the power conferred upon it and generally it is provided by statute that where a remonstrance to an application is filed within a certain time no action shall be taken by the licens- ing board without a hearing being given both to the applicant and also the remonstrants. And where such is the statutory provision there must be a compliance therewith. 74 The remonstrance must be filed in accordance with the provisions of the statute, and where it should be filed before the licensing board a party will not be allowed to file it for the first time on an appeal from the decision of such board. 75 And the court can not on appeal where the re- monstrance was withdrawn before such board allow a new party to appear and file a remonstrance. 76 A remonstrance which is not withdrawn relates to a second application made during the license year. 77 A village clerk being the clerk of the village trustees by whom licenses are granted a remonstrance filed in the 73. State v. Gerhardt, 145 Ind. 439, 44 N. E. 469. See also Flynn v. Taylor, 145 Ind. 533, 44 N. E. 546. "Where a county ordinance provides that no license shall be granted to carry on the liquor busi- ness in any election precinct in the county if a majority of the electors in said election precinct within one mile of the proposed place of business shall make a written protest such provision is in effect, but a form of limited local options no delegation of judicial power conferred by the ordi- nance upon the board of supervisors, and is a valid provision. Davis v. Board of Supervisors of Merced County, 7 Cal. App. 571, 95 Pac. 170. Under a county ordinance which provides that no license shall be granted to carry on the traffic within the territory embraced in any election precinct in said county if a majority of the electors in said district within one mile of the proposed place of busi- ness sign a written protest or if it shall appear that the applicant is not a fit and proper person the pro- test itself is sufficient to defeat the application without regard to the fact whether the applicant is or is not a fit and proper person. Davis v. Board of Supervisors of Merced County, 7 Call App. 571, 95 Pac. 170. 74. Hollembark v. Drake, 37 Neb. 680, 56 N. W. 296; State ex rel. Cox v. Hanlon, 24 Neb. 608, 39 N. W. 780; Brown v. Matthews, 51 N. J. L. 253, 17 Atl. 154, following Dufford v. Nolan, 46 N. J. L. 87; Swan v. Wilderson, 10 Okla. 547, 62 Pac. 422. 75. state v. Gorman, 171 Ind. 58, 85 N. E. 763; Ex parte Miller, 98 Ind. 451. 76. Miller v. Wade, 58 Ind. 91. 77. Rhode Island, Perkins. Horse Shoe Co. v. Board of License Com- missioners, 19 R. I. 643, 36 Atl. 2; See McLaughlin v. Wisler, 2S Ind. § 261] OBTAINING OF LICENSE GENERALLY. 309 :e of such clerk is " filed in the office where the application is made." 78 § 261. Remonstances — persons authorized to remonstrate. In many states provision is made by statute as to who may re- monstrate against the granting of a liquor license. In some states the right has been conferred upon the owner of property. 79 And a statute allowing the legal voters of the town to remonstrate against the granting of a license is not class legislation as all applicants are subject to the same conditions and terms in seek- ing to obtain a license. 80 And where the statute requires that a remonstrance shall be signed by a majority of the voters of the ward, a remonstrance to be effective must be so signed. 81 And where the remonstrances do not show that the persons signing App. 61, 62 X. E. 73; Hensley v. Metcalfe County Court, 115 Ky. 811, 74 S. \Y. 1054. 78. Vanderlip v. Derby, 19 Neb. 165, 26 X. \V. 707. 79. The word " owner " of land as used in a statute giving owners the right to object to the granting of a liquor license has been denned as meaning primarily one who is seized of a freehold estate in land ; one who owes no service to another which limits his dominion and not as in- cluding a lessee of land. American Woolen Co. v. North Smithfield (R. I. 1008), 69 Atl. 293. A city holding the fee to a park is an "owner" and entitled to objeci to the granting of a license. Dexter v. Sprague, 22 R. L. 32 1. 17 Atl. 889. 80. Boomershine v. Uline. 159 Ind. 500, 65 N. E. 513. st - Massey v. Dunlap. 146 Ind. 350, 44 X. E. 041. In Indiana where the remonstra- tors sign a remonstrance against the grant of a liquor license it is not nec- essary to show in the remonstrance that they are residents of the ward or township or that they constitute a ma- jority of the voters of such word or township. Bryan v. De Moss, 34 Ind. App. 473, 73 N. E. 156. A remonstrance signed by the ma- jority of the legal voters of the town- ship has been held sufficient in In- diana though not signed by a ma- jority of the voters of the ward. Shaffer v. Stern, 160 Ind. 375, 66 N. E. 1004. In determining the majority of voters in a township or ward in the case of a remonstrance the vote <<( that township or ward at the last general election preceding the filing of the remonstrance is the proper basis upon which to make the esti- mate. Massey v. Dunlap, 146 Ind. 350, II X. E. 041. The status of the remonstra- tors becomes fixed when the remon- strance becomes effective hut whether it ever becomes effective for lack of authorized signature- i- a question which may be challenged. Adams 310 OBTAINING OF LICENSE GENERALLY. [§ 262 them are qualified by statute to do so mandamus to compel a hearing upon the same will not be granted. 82 But there is held to be a waiver of objection to the qualifications of remonstrants where the applicant made no objection thereto either upon the hearing before the board of commissioners or upon the appeal to the circuit court. 83 In Oklahoma it has been decided that where the qualifications of a remonstrant are not prescribed by statute any person may be one. 84 So in Arkansas it is decided that any citizen has the right to appear and remonstrate against the grant- ing of a liquor license, on the ground that the applicant is not a person " of good moral character " as is required by statute. 85 § 262. Remonstrances — signing of. Under a statute in Indiana providing for a remonstrance by a majority of the voters of a township, both against individual applicants and against the business itself it is decided that when exercised it prohibits the individual in the one instance and the business in the other from being licensed for the term specified in the statute and that voters may remonstrate through an attorney in fact to whom they may give a continuing power to remon- strate. 80 The remonstrance signed by one under power of attorney v. Smith (Ind. S. C. 1910), 90 N. E. cuted prior to the passage of the 625. individual and general remonstrance 82. Gibboney's Petition, of (In re act of 1905 (acts 1905, p. 7, § 8332, Law & Order Society), 185 Pa. St. Burns, 1908) authorized the desig- 572, 40 Atl. 92. nated attorney to execute an indi- 83. Groscop v. Rainier, 111 Ind. vidual remonstrance signed and filed 361, 12 N. E. 694. after the taking effect of such act, 84. Watkins v. Grieser, 11 Okla. since such act did not repeal but 302, 66 Pac. 332. merely re-enacted the provisions of 85. Whissen v. Furth, 73 Ark. 366, § 7281i, Burns 1901, Acts 1895, p. 84 S. W. 500, 68 L. R. A. 161. 248, § 9, authorizing a remonstrance 86. McClanahan v. Breeding (Ind. against the individual applicant. 1909), 88 N. E. 695; Shaffer v. Nichols v. Lehman, 42 Ind. App. 384, Stern, 160 Ind. 375, 66 N. E. 1004; 85 N. E. 786. Ludwig v. Cory, 158 Ind. 582, 64 An error by an attorney in N. E. 14; Castle v. Bell, 145 Ind. 8, fact in signing Hip name of a per. 44 N. E. 2. son to a remonstrance may upon a In Indiana powers of attorney exe- motion to the court which is granted § 2631 OBTAINING OF LICENSE GENERALLY. 3H is not invalid because the power of attorney does ao1 contain the name of any applicant but is general and directed against all applicants for a license. 87 This authority bo given may be revoked at any time before it is exercised and the revocation becomes operative, so far as the agent is concerned from the time he has actual notice thereof. 88 Where attorneys in fact have signed remonstrances and a verified answer to the remonstrance has been made challenging the legal authority of the persons to sign such answers are held to be sufficient to put upon the remon- strators the burden of proving that the signers had such au- thority. 89 In Rhode Island it is decided that where a railroad company owns land within such a distance as entitles it to object to the granting of a license, a remonstrance signed by one as superintendent by direction of the general manager of the road who has authority to direct such signature is properly signed. 90 § 263. Remonstrances — right to withdraw from. Persons who have signed a remonstrance either themselves or by an attorney may withdraw therefrom either in person or by duly authorized attorneys before such remonstrance has become effec- tive. 91 But by statute it is sometimes provided that a remonstrant be corrected by amendment. Miller v. 1009), 88 N. E. 937: Miller v. Resler Resler (Ind. 1909), 88 N. E. 516. (Ind. 1909), 88 N. E. 516. A person remonstrating against a 90. Lonsdale Co. v. Board of Li- liquor license may employ his initials cense Comissioners of Town of Cum- to indicate his christian name in berland. 18 R. I. 5, 25 Atl. 655. subscribing a remonstrance, provided 91. Lee v. Shull (Ind. 1909), 88 his surname is written in full. Miller 1ST. E. 522, citing Castle v. Bell, 145 v. Resler (Ind. 1909), 88 N. E. 510; Ind. 8. 11. 4 1 N. E. 2; Ludwig v. Collins v. Marvil, 145 Ind. 531, 44 Cory, 158 Ind. 582, 587. 64 X. E. 14; N. E. 187. Ragle v. Mattox, 159 Ind. 584, 65 87. Ragle v. Matt. ix. 159 Ind. 584, X. E. 743; Shaffer v. Stern. 160 Ind. 65 X. E. 743: Ludwig v. Cory, 158 375, •".77. 66 X. E. 1094; Cain v. Ind. 582, i.t X. E. It. Allen. 168 Ind. 8. 24. 79 X. E. 896. 88. Honey v. Guillaume (Ind. In Mississippi under a statute pro- 1909), 88 N. E. 937: See also Miller viding thai one who signs both a v. Resler (Ind. 190'.)). ss \\ K. 516. petition and counter petition is to be 89. Honev v. Guillaume (Ind. counted as against the granting of 312 OBTAINING OF LICENSE GENERALLY. [§ 204 can not withdraw his name after a certain date from the time of Idling. - Under such a statute it is decided that a person signing cannot withdraw though it is claimed that the signing was under a mistake and misapprehension. 93 In Nebraska it is decided that one who has signed a remonstrance cannot defeat the object thereof by withdrawing his name and allowing the license to issue in the absence of other signers and without their consent. 94 § 264. Remonstrances — form and sufficiency of. If the statute required that a remonstrance shall be verified by affidavit compliance therewith is essential. 95 It should unless it is provided otherwise by statute be directed against some particu- lar applicant and should not join two or more therein. 96 Where there are several copies of a remonstrance, each of which is signed by different voters and filed as a remonstrance, they will be con- sidered as only one remonstrance. 97 And a remonstrance will not be considered as ineffectual because it contains surplusage but the surplusage will be rejected. 98 Where the statute simply provides that a remonstrance may be filed but does not require that it shall the license, it is held that he may 44 N. E. 4G9, 33 L. R. A. 313; Con- withdraw his name from the counter well v. Overmeyer, 145 Ind. 698, 44 petition before final action by the • N. E. 548. licensing board. Perkins v. Hender- 94. State v. Coleman, 34 Neb. 440, son, 68 Misc. 631, 9 So. 897. 51 N. W. 1025. 92. State v. Gerhardt, 145 Ind. 95- Palmer's License, 3 Pa. Co. Ct. 439, 44 N. E. 409. R. 314. The status of the signers, as that 96. Massey v. Diinlap, 146 Ind. 350, of remonstrators, is also fixed for the 44 N. E. 041. period prescribed by the statute 97. Flynn v. Taylor, 145 Ind. 533, within which a license can not be 44 N. E. 540. planted and any effort by them to 98. Thompson v. Hiatt, 145 Ind. withdraw and change such status 530, 44 N. E. 486, so holding where during that period is nugatory. Beh- a remonstrance was directed against ler v. Ackley (Ind. S. C. 1909), 89 "John W. Thompson or any appli- N. E. 877. cant " the words or any applicant 93. Sutherland v. McKinney, 146 being rejected. Examine Collins v. Ind. nil. 45 X. E. 1048, citing White Barrier, 04 Miss. 21, 8 So. 164. v. Prifogle, 140 Ind. 64, 44 N. E. The sufficiency of a remonstrance is 926; State v. Gerhardt, 145 Ind. 439, called into question by the filing of e 265] OBTAINING OF LICENSE GENERALLY. ;;i:; stall- any reasons therein why a license should not be granted, none need be given. 11 '' But if the statute designates the causes remonstrances can only be filed for such causes as the statute specifies and where a statute permitted a remonstrance to be filed " an account of immorality or other unfitness " of the applicant a remonstrance was held insufficient which merely alleged that the business of selling intoxicating liquors was " inherently wrong, unlawful, dangerous to public and private morals." * A remonstrance on the grounds of immorality should set forth the particulars of immorality. 2 In Indiana it is held that the immor- ality upon which a remonstrance is based need not be limited to such immorality as is specified in the statute. 3 An amendment to a remonstrance making it more specific may be made on an appeal from an order of a board refusing a license. 4 § 265. Remonstrances — hearing of — procedure — appeal. A statutory provision that upon a remonstrance being filed the licensing board shall fix a day for hearing the case is mandatory and the action of the board must be in accordance therewith. 5 And where a statute authorizes remonstrances and directs the licensing board to consider the same mandamus will lie to compel proper action by the board. 6 Where a hearing is given to the re- monstrators and the board adjourns the adjournment should be to a time which is reasonable. 7 The proceeding upon an application an application for a liquor license. to make the remonstrance more spe- Behler v. Ackley (Ind. S. C. 1900), cine when the application is made be- 89 X. E. >!77. fore the jury are impaneled and J>!>. Boomershine v. Uline, 159 Ind. sworn and before any witness is 500, 65 X. E. 513. sworn. Hardesty v. Hine, 135 End. l. Barnes v. Rhoades (Ind. 1000), 72, 34 X. E. 701. s7 X. E. 643. •"• State v. Reynolds, 18 Neb. 131, ii. Grummon v. Holmes, 76 Ind. 25 X. W. 610. See Wat kins v. Grie- 585. ser, 11 Okla. 302, 66 Par. 332. 3. Groscop \. Rainier, 111 Ind. 361, « : - State v. Reynolds, 18 Neb. 431, 12 N. E. 694. 25 X'. \Y. 610. i. Stockwell v. Brant, 97 Ind. 474. "• State v. Weber, 20 Neb. 467, 30 Remonstrators should be allowed N. \Y. 531. 314 OBTAINING OF LICENSE GENERALLY. [§ 265 for a license and the remonstrance is a judicial proceeding, a civil action. s And an issue of fact upon the hearing of an application for a license and a remonstrance against the granting of the same can only be heard on competent evidence under the rules governing civil trials in courts of law. 9 The license board in the hearing of a remonstrance against granting a liquor license, has power to compel the attendance of witnesses, the production of books and papers, and to commit for contempt a person if he persists in re- fusing to answer questions or if he wilfully refuses to produce books and papers before the board. 10 Under a statute giving voters the right to remonstrate against an applicant for a license or the business generally it is decided that each applicant has a right to be heard on a remonstrance against individuals during the period the remonstrance has to run. 11 One who is permitted by statute to remonstrate against the granting of a liquor license becomes a party to the proceeding and though he has no pecuni- ary or property interest that is affected by the action of the board he is entitled to have the proceedings reviewed on certiorari. 12 In Nebraska it is decided that if a remonstrant appeals from an order of the excise board granting a saloon license, the district court is without authority in that proceeding to direct said board 8. McClanahan v. Breeding (Ind. 1909), 88 N. E. 695. 1909), 88 N. E. 695. 12, Darling v. Boesch, 67 Iowa ». Watkins v. Grieser, 11 Okla. 702, 25 N. W. 887. 302, 66 Pac. 332. In West Virginia a circuit court When a licensing board, upon the has no jurisdiction at the suit of a hearing of a remonstrance against protestant against the grant by a the issuance of a license, refuses to county court of leave to get license receive a part of the testimony offered to sell intoxicating liquors, to al- by the remonstrators, an offer of low a writ of certiorari from the proof should be made, that the ap- order of a county court granting pellate court may determine whether such leave, and a writ of prohibition or not its rejection was erroneous or will issue from the supreme court to prejudicial. Seele v. Phelps, 81 Neb. prohibit the entertainment and prose- 690, 116 X. \Y. 681. cution of such certiorari. Such order 10. Rosewater v. Pinzenscham, 38 is final and no process lies to reverse Neb. 835, 57 X. VY. 563. it. Myers v. Circuit Court of Tucker 11. McClanahan v. Breeding (Ind. County, 64 W. Va. 444, 63 S. E. 201. § 266] OBTAINING OF LICENSE GENERALLY. 315 to reconvene and receive testimony thai w&b offered by the re- monstranl and excluded by such board. 18 § 266. Remonstrances — burden of proof. Where on the trial of an application for a liquor license a re- monstrance has been filed, the burden is on the applicant to prove by competent evidence all matters which are under the statute incumbent on him to do or to show to procure a license. 14 But other matters set up by the remonstrants must be proved by them. 15 So where in the remonstrance to an application for a license it is claimed that the petition was not signed by the req- uisite number of freeholders, the burden of proof is held to be upon the petitioner to establish by competent evidence the fa#t that a sufficient number of the petitioners were freeholders." 1 And where it is alleged in a remonstrance that the notice of the appli- cation has not been published in the two newspapers having the largest circulation in the county as required by statute the burden is on the applicant to prove a compliance with the statute in this respect. 17 13. In re Thompsen (Neb. 1909), 120 N. W. 952. In this state where a hearing has been had upon an application for a license to sell intoxicating liquors and a remonstrance thereto, and such remonstrance has been overruled and the license issued, and an appeal lias been taken to the district court within a reasonable time, the license so is- sued should be recalled and revoked pending such appeal and mandamus will issue to compel the recall and revocation of the license. State ex rel. Woods v. Rathsack, 82 Neb. 386, 117 N. W. 949. 1-*. Smith v. Young, 13 Okla. 134, 74 Pac. 104. I-"- Watkins v. Grieser, 11 Okla. 302, 66 Pac. 332. The burden of proof is on remon- strators to show that they come within the terms of the statute as where the statute requires a remon- strance to be signed by a majority of the legal voters. Adams v. Smith (Ind. S. C. 1910), 90 X. E. 625. The burden of proof is on the ap- plicant to show that a petitioner is a bona fide freeholder where this is- sue is raised by a remonstrance. MaHca v. Yo-t i Neb. 1910), 124 X. W. 460. !<>• Rosenberg v. Rohrer I Neb. L909), 120 NT. W. 159. 17. Smith v. Young, 13 Okla. 134, 74 Pac. 104. 310 OBTAINING OF LICENSE GENEEALLY. [§ 267 § 267. Mode of testing validity of license — collateral attack — In Illinois it is decided that the validity of a dramshop license is properly challenged by quo warranto proceedings 1S while in .Missouri it is declared that the accepted mode of testing the va- lidity of a dramshop license when the facts necessary to deter- mine its validity appear of record is by certiorari. 19 But it is a general rule that the validity of a license can not be attacked in a collateral proceeding. So where the county court, having the exclusive power of granting licenses, has determined that there has been a compliance with the law by the applicant for a license and has issued the same to him its judgment or order is binding and conclusive and cannot be overthrown except in some pro- ceeding directly attacking it and cannot be impeached in a col- lateral proceeding such as on the trial of a prosecution for sell- ing liquor in violation of law. 20 And on the prosecution of a person charging that, having a license as a dramshop keeper, he kept his saloon open on Sunday in violation of the law, he will not be permitted to question the validity of the order of the court which issued the license to him, as to permit this would be to attack the record and judgment of a court of record in a collateral proceeding. 21 So in an early case in Kentucky it was decided that the county court had the power to grant a license to keep a tavern and that if improperly granted it must be vacated by a direct proceeding and could not be collaterally determined on a presentment for retailing spirits. 22 Again where the return made IS. People v. Heidelberg Garden dramshop keeper in a proceeding by Co., 233 111. 290, 84 N. E. 230, cit- certiorari to determine his right to ing Martens v. People, 180 111. 314, sell liquor is a proper and necessary .".7 X. E. 871 ; Swarth v. People, 109 party as he is the only one who has 111. 021; People v. Chicago Teleph. any right involved save that of the Co., 220 111. 238, 77 N. E. 245. public. State v. Denton, 128 Mo. l»- Coooper v. Hunt, 103 Mo. App. App. 304, 107 S. W. 446. 9, 77 S. W. 483, citing State v. Heege, 20. State v. Evans, 83 Mo. 319. 37 Mo. App. 338; State v. Hitfgins, 21. State v. Mulloy, 111 Mo. App. 71 Mo. App. 180; State v. Seibert, 679, 80 S. W. 569. 97 Mo. App. 212. 71 S. W. 95. 22. Commonwealth v. Graves, 18 Dramshop keeper as party. — A B. Mon. (Ky. ) 33. § 267] OBTAINING OF LICENSE GENERALLY. ;;i7 by the city official issuing a license, shows that the city authorities granted the license and shows also the payment of the license fee and the giving and approval of the bond, it will be presumed that the license was lawfully granted and the city authorities are estopped from denying such fact. 23 23. Common Council of Oshbosh v. State, 59 Wis. 425, 18 N. W. 324. 31 g LICENSING BOARDS AND OFFICIALS. [§ 208 CHAPTER XII. LICENSING BOARDS AND OFFICIALS. Section 2G8. Granting license' ordinarily matter of discretion. 269. Nature of discretion and exercise of. 270. Official's duty ministerial — must issue license. 271. Compelling issuance of license. 272. Mandamus — what essential to show to obtain. 273. Mandamus to compel issuance of receipt — to compel action on application. 274. Board having discretionary power — right to appeal from action of. 275. Where appeal allowed parties. 276. Where appeal allowed — procedure and practice. 277. Licensing board must act in conformity with powers. 278. Power of board — time of granting. 279. No power to grant license to sell in forbidden locality. 280. License board cannot delegate power. 281. Action by officers de facto. 282. Ordinance granting license — duty of official to sign. 283. Clerks should not depart from order of court in issuing. 284. Refusal for violation of law. 285. Refusal for violation of law — effect of conviction or decree. 286. Qualifications of members of board. 287. Liability of members of board. § 268. Granting license ordinarily matter of discretion. Ordinarily the board upon which power to grant a license is conferred is vested with a certain discretion in determining whether a license shall be granted or refused in each particular case. 1 And a statute providing that the board of trustees of a 1. Arkansas— Whissen v. Furth, 73 Georgia.— Adams v. Gormley, 69 Ark. 366, os S. W. 161, 68 L. R. A. Ga. 743. 161; Ex parte Clark, 69 Ark. 435, 64 Ramos.— Stanley v. Monnet, 34 S. W. 223. Connecticut. — Burns Appeal, 76 Conn. 395, r,r, Atl. 611. Batters v. Minnesota.— County Commissioners Dunning, 49 Conn. 479. v. Robinson, 16 Minn. 381. § 2G8] LII ENSING HOARDS AND Ol-TM IAI.S. 319 town " shall have no right, power, privilege or discretion to r< fuse or grant licenses until another election is held" is not to ho construed as meaning that they are to have no discretion as to what applicant shall be licensed or as denying them the power to Mississippi. — Perkins v. Ledbetter, 68 Miss. 327, 8 So. 507. Missouri. — State v. Holt Count}' Court, 39 Mo. 521 ; State v. Fort, 107 Mo. App. 328, 81 S. W. 476; Cooper v. Hunt, 103 Mo. App. 9, 77 S. W. 483. Nebraska. — State v. Alliance, 65 Neb. 524, 91 N. W. 387; Waugh v. Cxraham, 47 Neb. 153, 66 N. W. 301. New Jersey. — Van Nortwick v. Ben- nett, 62 N. J. L. 151, 40 Atl. 689. New York. — People ex rel. Schultz v. Murray, 2 App. Div. 607, 37 N. Y. Supp. 1096; People v. Commis- sioners, 25 N. Y. Supp. 873. Xofth Carolina. — Mathis v. Board of Commissioners of Duplin County, 122 N. C. 416, 30 S. E. 23. Pennsylvania. — Sparrow's Petition, 138 Pa. St. 116, 20 Atl. 711 ; Rauden- busch's Petition, 120 Pa. St. 328, 14 Atl. 148 ; Sperring's License, 7 Pa. Super. Ct. 131 ; Susquehanna County License, 3 Pa. Co. Ct. R. 616. West Virginia. — Hein v. Smith, 13 W. Ya. 358. The question whether public necessity or convenience as shown by the evidence, require the granting of a permit to sell liquor is one peculiarly within the discretion i if the court. In re Applications of Henery, 124 Iowa 358, 100 N. W. 4:?. Refusal in vicinity of post office or court house. — Tt IS not an abuse of discretion vested in the ex- cise board of a city to refuse n license for the sale of intoxicating liquors ;if a place in the near vicinity of a posl office and United State courthouse, or at any other locality in rear prox- imity to a place which women and children in large numbers are daily required to visit for business or other proper purposes. Jugenheimer v. State Journal Co., 81 Neb. 830, 110 N. W. 904. Refusal for reason not appli- cable. — Where in refusing a license the reason assigned is one which the statute declares shall not apply to licenses for the traffic for which the license in question is sought, such reason is not a legal and valid one and the license should be granted, although tne board is vested with a discretion in the matter in respect to other essentials. Geinas' Appeal, 169 Pa. St. 43, 32 Atl. 88. Refusal for reason inconsist- ent with fair exercise of dis- cretion. — The granting of a license in less than three weeks after a re- fusal to grant a transfer of a license to a place on the same block on the ground that there were already " suf- (icient licensed places in that vicin- ity " in the absence of any satisfactory explanation or any change in the sur- roundings, is inconsistent with a fair and impartial exercise of discretion and is evidence of such discrimination between the applicants as to show that the refusal was arbitrary and require its reversal. People ex rel. Curran v. Commissioners, Excise of City of Brooklyn, 12 Misc. R. (N. Y.) 296, :>,\ \. Y. Supp. 22. Proof as to granting another license under similar conditions immaterial. — In Connecticut it is decided thai proof in the Superior Court thai the county commissioners had renewed a license to some other applicant to sell liquor at some other 320 LICENSING BOARDS AND OFFICIALS. [§ 2G8 refuse to grant licenses but they may exercise a reasonable dis- cretion as to the number of licenses which may be granted. 2 The fact that a board in which discretion is vested in regard to the place near a church or schoolhouse is immaterial, since each application stands by itself unfettered by any ac- tion of the commissioners taken in other cases. Schusler's Appeal, 81 Conn. 276, 70 Atl. 1029. Covenants in deeds not to sell intoxicating liquors on premises for which a license is sought, how- ever, they may bind the parties to such deeds are no legal restraint upon the court in granting licenses for the public convenience. Barnegat Beach Assn. v. Busby, 44 N. J. L. 627. Presumption that refusal ■was for legal reason.— In Pennsylvania it is decided that the court of quarter sessions need not set forth in the or- der its reasons for refusing a license and that if it does not set them forth it will be presumed that the license was refused for a legal reason and not arbitrarily. Weaver's License, 20 Pa. Super. Ct. 95. In Nebraska it is decided that the excise board of a city is vested with a wide discretion in the matter of granting liquor licenses which dis- cretion extends to limiting the num- ber of licenses which it will issue for the sale of liquors within the city, as well as the number that will be granted for any particular locality. In re Jugenheimer, 81 Neb. 836, 116 N. W. 966. In Pennsylvania under the stat- ute it is held that the court may re- fuse a license where it appears that the license to sell at the place in ques- tion is not necessary for the accom- modation of the public though the ap- plicant may possess the other neces- sary qualifications. In re Washington County Liquor Licenses, 11 Pa. Dist. Rep. 339. The word " necessary " used in this connection does not mean indispensable or even necessary to the best interests or well being of the individuals composing the public. Brownell's License, 11 Pa. Co. Ct. R. 404. No injunction to restrain.— A private citizen who sustains no injury differing from that sustained by the public in common is not entitled to an injunction to restrain a licensing board from granting a license. Seager v. Kankakee County, 102 111. 669; Nast v. Eden, 89 Wis. 610, 62 N. W. 409. In New York it has been decided that a licensing board having dis- cretionary powers can not be re- strained from granting a license when no excess of authority or actual cor- ruption is averred in the complaint. Leigh v. Westervelt, 9 N. Y. Super. Ct. (2 Duer) 618. And it has been declared that the remedy if any for the erroneous ac- tion of a licensing board in granting a license is not by injunction but certiorari. Northern Pac. R. R. Co. v. Whalen, 3 Wash. Terr. 452, 17 Pac. 890. No prohibition to restrain void grant.— Where a license granted would be null and void no writ of prohibition is necessary to restrain a grant thereof. Beckham v. Howard, 83 Ga. 89, 9 S. E. 784. 2. Schwierman v. Town of High- land Park, 130 Ky. 537, 113 S. W. 507; Riley v. Rowe, 112 Ky. 817, 66 S. W. 899. §§ 269, 1*70] LICENSING BOAKDS AND OFFICIALS. 32] granting of licenses may ad capriciously or arbitrarily is no ob- jection to the validity of the statute granting such power. 3 § 269. Nature of discretion and exercise of. The discretion which such boards possess is a sound discretion to be exercised in accordance with the laws in force in respecl to the granting of licenses and to be properly, fairly, impartially, and consistently exercised without discrimination in favor of one applicant against another. The action must not be capricious or arbitrary. 4 So in a recent case in Kentucky it is declared that where an applicant for a license must show to the licensing board that he possesses certain qualifications such as that he is a person of temperate habits and good moral character and has not within a certain length of time kept a disorderly house or been convicted of any crime and the board is not authorized to issue a license until these facts are satisfactorily shown, such board acts in grant- ing or refusing the license in the exercise of a discretion, which however must be a sound discretion and they cannot act arbitrarily and their action must not be the result of mere caprice or preju- dice. 5 § 270. Officials' duty ministerial — must issue license. In several states the rule prevails under the statutes there in 3. State v. Settles, 34 Mont. 448, Misc. R. 296, 34 X. Y. Supp. 22. 87 Pac. 445, construing a statute con- Xorth Carolina. — Attorney General ferring discretionary power upon the v j us tices, 27 N. C 315. board of county commissioners in re- Pennsylvania.— Kehnmzki's Li- gard to the granting of licenses. ^^ lfl4 pa gt 231 30 AU 301 . 4. Arkansas.— jix parte Levy, 43 Johnson > 3 Licen se. 156 Pa. St. 322, Ark - 42 - 20 Atl. 1066 j Sparrow's Petition, 138 Connecticut.— Hopson's Appeal, 05 pa gt ]1( . 2Q A( , m . sd.landecka Conn. 140, 31 Atl. 531. y Marshall. 72 Pa. St. 200. Kentucky. — Louisville v. Kean, 18 B. Mon. 9. New York. — People ex r< I. Fuhry v. Board of Excise, of City of Brook- Virginia.— Mistook v. Page, 77 Va. lyn, 91 Hun 269, 36 X. V. Supp. 158; 38G - People ex r I. Cunan v. Commission- •"• City of Louisville v. Gagen, ers of Excise of City of Brooklyn, 12 (Ky. C. A. 1909), 110 S. VY. 745. Utah. — Perry v. Chadwick, 7 Utah It:;. 25 Pac. 739, 998, 11 L. II. A. 440. 322 LICENSING BOARDS AND OFFICIALS. [§ 270 force that the duty of the licensing board in respect to the issuance of licenses is a ministerial one and that where there has been a compliance by the applicant as to the statutory requirements in respect to his petition and a showing of the proper qualifications, the board must issue the license. 6 So in Florida it has been de- cided that the county commissioners have no discretion or au- thority to prohibit the sale of liquors by refusing to act upon a proper petition but that the law imposes upon them the duty of granting a license where the petition complies fully with the statute. 7 And in Isfew York it has been decided that upon an application to the county treasurer for a liquor tax certificate, 6. California. — Henry v. Barton, 107 Cal. 535, 40 Pac. 798. Florida. — State v. Commissioners, 20 Fla. 425. Illinois. — Zanone v. Mound City, 11 111. App. 334. Kentucky. — Hodges v. Metcalfe County Court, 116 Ky. 524, 76 S. W. 381 ; Dougherty v. Commonwealth, 14 B. Mou. 239. New York. — People ex rel. Belden Club v. Hilliard, 28 App. Div. 140, 50 N. Y. Supp. 909. North Carolina. — Hillsboro v. Smith, 110 N. C. 417, 14 S. E. 972. Oregon. — MeLeod v. Scott, 21 Oreg. 94, 26 Pac. 1061, 29 Pac. 1. In California the duty of the board of police commissioners of Los An- geles has been held ministerial in the granting of a permit to carry on the liquor traffic while its duty in re- voking permits is quasi judicial. Grumbach v. Lelande (Cal. S. C. 1908), 98 Pac. 1059. Official bond to require compli- ance -with statute. — Where the offi- cial authorized to issue licenses acts in a ministerial capacity in the issuance of them he is bound to require a sub- stantial compliance with all the pre- •:! statutory conditions and while the license is itself prima facie evi- dence of such compliance, the fact of non-compliance, when affirmatively shown renders the license void and consequently of no protection to the one to whom it is granted. Russel v. State, 77 Ala. 89. 7. State v. Commissioners, 20 Fla. 425. The provision of the Liquor Tax Law of New York that when the ap- plication for a certificate is correct in form and the liquor tax bond is found to be proper in every way, and the required amount for the tax is tendered, the certificate must be is- sued by the county treasurer, unless it shall appear by a certified copy of the statement of the result of an elec- tion held on the local option question pursuant to the Liquor Tax Act in and for the town where the applicant proposes to traffic in liquors under the certificate applied for, that such liquor tax certificate cannot be law- fully granted, does not require thai a certified statement of the result of the election shall be filed with the county treasurer. Matter of Krumb- holz. 60 Misc. R. (N. Y.) 534, 113 X. Y. Supp. 1060. § 271] LICENSING BOARDS AND OFFICIALS. 323 ho may not examine his files and determine the truthfulness of the statements contained in the application, but he musl issue the certificate if the application is correct in form ami does not show on its face that the applicant is prohibited from trafficking in liquor, the treasurer's duties under the statute being purely minis- terial. 8 § 271. Compelling issuance of license. In those states where the issuance of a license is in the nature of a ministerial duty its issuance may be compelled by man- damus at the instance of one showing himself entitled thereto. 8 And a licensing board though it may be vested with a discretion in the matter of granting licenses cannot act arbitrarily or capri- ciously in refusing to issue a license and where it appears that an applicant is entitled to a license so far as compliance with the statutory requirements is concerned and that the action of the board is of such a character issuance of the license may be com- pelled by mandamus. 10 And where it appears that a person is entitled to a license it is said that an appeal to the court on moral grounds to withhold a writ of mandamus, and thus to annul a valid act of the legislature by refusing to enforce it, is not 8. People ex rel. Scanlon v. States v. Commissioners, 6 Mackey Walker. 60 -Misc. R. (N. Y.) 130, 409. 112 N. V. Supp. 1021. Illinois— Zanone v. Mound City, License to sell " Near beer ".— 103 111. 552. The issuance of a license for the sale Kentucky. — George & Bro. v. Win- of "near heer " under a statute in Chester, 26 Ky. Law Rep. 170, 80 S. North Carolina is a ministerial act W. 1158. which may be compelled by manda- Louisiana. — New Orleans v. Smvthc, urns. Parker v. Griffith (N. C. 116 La. 685, 41 So. 33; State v. New 1009), GG S. E. 565. Orleans, 113 La. 371. 3G So. 999. 9. State v. Williams. 143 Ala. 501, Missouri.—- State v. Baker, 32 Mo. 39 So. 276: Harlan v. State. L36 Ala. App. 98. 150, 33 So. 858: State v. Turner. 210 iska. — State V. Alliance, 65 Mb. 77. 107 s. W. 1064. See McLeod Neb. 524, '.'1 \. W. 387. \. Scott, 21 Greg. !>4. 2G Pac. 1061, Pennsylvania. — Prospect Brewing 29 Pac. 1. Co.'s Petition. 127 Pa. St. 523. 17 10. District of Columbia.— United Atl. 1090. 324 LICENSING BOARDS AND OFFICIALS. [§ 271 a proper argument to be addressed to a judicial tribunal, for if courts yielded to it they would usurp legislative func- tions. 11 In a proceeding by mandamus to compel tbe issu- ance of a license the applicant may attack the validity of the law which the court in refusing to grant it claims debars him. 12 Where however the action of a licensing board in granting or re- fusing a license is in its nature judicial they will not be com- pelled by mandamus to grant a license in the absence of any allegation or proof that the action of the board was arbitrary. 13 Nor will mandamus issue where the law provides a remedy by South Dakota.— Burke v. Collins, 18 S. D. 190, 99 N. W. 1112. 11. State v. Commissioners, 20 Fla. 425. 12. State v. Turner, 210 Mo. 77, 107 S. W. 1064; State v. Cass County Court (Kans. City C. A. 1909), 119 S. W. 1010. 13. Alabama. — Ramagnano v. Crook, 85 Ala. 226, 3 So. 845. Arkansas. — Ex parte Whittington, 34 Ark. 394. Connecticut. — Malmo's Appeal, 72 Conn. 1, 43 Atl. 485. District of Columbia. — Washington v. Johnson, 12 App. Cas. 545. Florida. — Packett v. State, 33 Fla. 385, 14 So. 834. Georgia. — Eve v. Simon, 79 Ga. 120, S. E. Indiana. — Montpelier v. Mills, (Ind. 1908), 85 N. E. 6; State v. Commis- sioners, 45 Ind. 501. Kentucky. — Heblick v. Judge, 10 Ky. Law Rep. 811. Maryland. — Devin v. Belt, 70 Md. 352, 17 Atl. 375. Minnesota. — State v. Common Council, 94 Minn. 81, 101 N. W. 1063. Missouri. — State v. Cass County Court, (Kansas City C. A. 1909), 119 S. W. 1010; Stale v. Stiff, 104 Mo. App. 685, 7H S. W. 075; State v. Hig- gins, 84 Mo. App. 531. Nebraska. — State v. Pearse, 31 Neb. 562, 48 N. W. 391. New York. — People v. Norton, 7 Barb. 477. North Carolina. — Barnes v. Com- missioners of Wilson County, 135 N. C. 27, 47 S. E. 737. Jones v. Commissioners of Moore County, 100 N. C. 436, 11 S. E. 514; Attorney- General v. Justices, 27 N. C. 315. Pennsylvania. — Knarr's Petition, 127 Pa. St. 554, 18 Atl. 639. A writ of prohibition will not is- sue to compel the granting of a li- cense where it is merely permissible upon compliance with certain condi- tions prescribed by statute. State v. Fort, 107 Mo. App. 328, 81 S. W. 476. The police jury in Louisiana having been granted power and au- thority to deal with the subject of special elections touching local option in matters of liquor licenses, action by it under such authority has been held to control the situation until set aside or annulled in some legal proceeding and the sheriff being substantially the executive officer of that body the courts cannot ignore the authority of the police jury over him and force him by mandamus to issue a license which such jury forbids him to do. State v. Davis, 119 La. 247, 44 So. 4. § 272] J. H ENSING BOARDS AND OFFU [ALS. 325 appeal. 1 1 And mandamus will qo1 lie to compel the issuance of a license where the purpose of such proceeding is to inquire into the regularity or validity of an election officially declared to have resulted in favor of prohibition where the statute provides a remedy for establishing the invalidity of such election. 18 And mandamus will not issue to compel the issuance of a license to one who desires thereby to affect an illegal purpose such as to transfer it contrary to law. 16 § 272. Mandamus — what essential to show to obtain. Where one seeks by mandamus to compel the issuance of a license it must appear from the record of the case in which the writ is asked that all legal prerequisites to the issuance of a valid license exist and that no substantial legal requirement is missing from the conditions which make it a duty to issue such license. 17 Where the application does not conform to the pro- 14. West & Co. v. Board of Com- missioners of Latah County, 14 Ida. 353, 94 Pac. 445 holding that where the board of county commissioners is vested by statute with a discretion- ary power in the granting of licenses and may refuse to issue a license upon its own motion or upon objec- tions duly filed when in its judgment the granting of a license will not be conducive to the best interests of the community in which the business is to be conducted their refusal to grant a license to an applicant will not be controlled by a mandate from the court, but the remedy by appeal as provided by law must be pursued. 15. state v. Martin, 55 Fla. 538, 4G So. 424. 16. State v. County Commissioners, ■21 Fla. 1. Suitor with unclean hands not entitled to. — It appearing in the answer, the averments of which must be here accepted as true, that the premises of the relator have been the resort of disreputable, vicious, and disorderly characters, prostitutes and women of questionable reputation, that the relator violated the terms of his license by selling liquor to in- toxicated men, and that the relator is not a lit person to have a license, he is certainly not in a position to ask this court to grant him this ex- traordinary remedy — a remedy that courts apply to prevent a failure of justice and never to a suitor with un- clean hands. United States v. Rich- ards, 37 Wash. Law Rep. 450. Where a license would not only be useless but one which the licensing official would not be authorized to grant mandamus will not issue, upon the principle that to obtain such re- lief the party Beeking it must show a clear legal right thereto. Lyttleton v. Downer (Tex. Civ. App. 1910), 124 S. W. 094. it. Hippen v. Ford. 129 Cal. 315, 32(j LICENSING BOAEDS AND OFFICIALS. [§§ 273,274 visions of the statute mandamus will not be awarded. 18 And it will not lie to compel the granting of a license to one who has not applied for the same in a proper way though the licensing board has declared that it will not grant any licenses such board being required by law to issue licenses to proper persons at a proper place, their duty being not discretionary but ministerial. 19 "Where the court is in doubt as to the right of a person to man- damus compelling the granting of a license to him it is declared to be the duty of the court to resolve the doubt against him. 20 § 273. Mandamus to compel issuance of receipt — to enforce action on application. Mandamus will lie to compel a city treasurer to issue a receipt to an applicant for a liquor license where such receipt is a neces- sary step in the procurement of a license. 21 And where a saloon keeper tenders his application for a license, in conformity with the ordinance of the city and tenders his bond in conformity with the statute he is entitled to have them considered by the common council of the city at an early date, and approved or disapproved, and in the case of disaproval to be given reasons therefor and in case of delay mandamus will be granted to enforce such action but not to compel the issuance of the license, the council being vested with discretion. 22 § 274. Board having discretionary power — right to appeal from action of. Though an appeal may lie from the action of a licensing board (51 Pac. 920; State v. Packett (Kans. 20. state ex rel. Crabbe v. Miller, City C. A. 100!)), 119 S. W. 25; 129 Mo. App. 390, 108 S. W. 603, Harrison v. Dickinson (Tex. Civ. citing State v. Higgins, 84 Mo. App. 1008), 113 S. W. 776, citing Arberry 531; State v. Cottengin, 172 Mo. 129, v. Bearers, 6 Tex. 473, 55 Am. Dec. 72 S. W. 498. 701. 31 ' Rowland v. State ex rel. Zukle- 18. Glenn v. Lynn, 80 Ala. 608, 7 back, 56 Fla. 422, 47 So. 963. So. 02 k 22 ' Cox v. Common Council of City 19. Riley v. Rowe, 112 Ky. 817, 66 of Jackson, 152 Mich. 630, 116 N. W. S. W. 000. 456. LICENSING BOARDS AND OFFICIALS. 327 § 274] granting or refusing a license, yet where such board has discre- tionary [lowers in the matter, their decision should nol be re- versed unless it appear that there was an arbitrary exercise of dis- cretion by them. 28 In New Jersey it has been decided thai the power to grant a license being discretionary with the court such discretion cannot bo made the subject of review on appeal and that the court will not examine into the facts upon which the exer- cise of such discretion is based. 24 So where a board has the right to limit the number of places which it will license in a specified territory, a refusal to grant a license upon the ground thai then- are a sufficient number of places already licensed within such territory should be sustained unless the court is satisfied that such ground is a subterfuge and does not constitute the real reason for 23. Connecticut. — Hopson's Appeal. 65 Conn. 140, 31 Atl. 531. Ioiva. — In re Moore (1908), 118 N. W. 879. Kentucky. — Louisville v. Gagen (1909), 116 S. \V. 74.1: Thompson v. Koch, 98 Ky. 400, 33 S. W. 96; Pierce v. Commonwealth, 10 Bush 6. New York. — Matter of Schomaker, 15 Misc. 648, 38 N. Y. Supp. 167; People ex rel. Ryan v. Dalton, 7 Misc. R. 558, 28 N. Y. Supp. 491. North ( 'a rol ina. — Commissioners v. Kane. 47 N. C. 288. Sec Mathis v. Board of Commissioners of Duplin County. 122 N. C. 416, 30 S. E. 23. 24. Barnegai Beach Ass'n v. Busby, tl \". .1. L. 627. Private individuals who have no peculiar interesl in the action of a licensing board in granting a li- cense will not be allowed to sue out a writ of certiorari to review the ac- tion of such hoard. State v. Gillilan (Vt. 1910), 75 Atl. 711. Where the mayor of a city in the exercise of the power conferred upon him has vetoed a resolution of the common council of the city grant- ing a license, on the ground of the unsuitableness of the place where the saloon is proposed to be located, it is decided that such discretion is not re- newable by the courts. Sherlock v. Stuart. 96 Mich. 193, 55 X. W. 845, 21 L. R. A. 580 n. On the hearing of an applica- tion by a registered pharmacist for a permit to buy and sell intoxicat- ing liquors the question whether " tic reasonable convenience and necessities of the people considering the popula- tion and all the surroundings make the granting of the permit proper ' provided by the code is one to be de- termined 1>- the trial court under the evidence, in the exercise of a sound discretion, and judgment and it" it does not appear from the record that such discretion has been abused the finding of the court hearing the ap- plication should be sustained. ]n re Moore | Iowa 1908), 118 X. \Y. 879. Whether commissioners liable criminally. — If commissioners of ex- cise having the power to grant li- censes, act i" t_ r "(>d faith in granting one they cannot be punished though 328 LICENSING BOARDS AND OFFICIALS. [§ 275 their action. 25 And the exercise of the discretion of county com- missioners in determining whether an applicant or place is " suit- able " is not reviewable and alleged errors of the trial court in the admission of testimony and the conclusion reached in the law- ful exercise of the discretion conferred cannot be considered on appeal. 26 But though a licensing board may have the right to exercise discretion in the granting or refusing of a license yet it is decided that its exercise must be reasonable and not arbitrary and that it was unreasonably exercised where a license was re- fused because a church had been built across the street from where the business was located it appearing that such business had been conducted in that place for many years. 27 § 275. Where appeal allowed— parties. In some states the action of the licensing board in granting a license may be reviewed at the instance of a resident and tax payer, 28 or of a remonstrant. 29 And in Mississippi it has been they act erroneously, as, having the power to act, only a criminal intent can make the act criminal. People v. Jones, 54 Barb. (N. Y.) 311. 25. People ex rel. Hoy v. Mills, 91 Hun (N. Y.) 144 30 N. Y. Supp. 371. 26. Malm's Appeal, 73 Conn. 232, 47 Atl. 163. 27. City of Louisville v. Gagen, (Ky. C. A. 1909), 118 S. W. 947. 2«. Beard's Appeal, 04 Conn. 520, 30 Atl. 775, holding that such a per- son need show no interest or griev- ance in the matter peculiar to him- self. White v. Atlantic City, 62 N. J. L. 044, 42 Atl. 170, recognizing such right where license granted by munic- ipal body contrary to law. If not authorized by law such a person cannot sue out certiorari to review the action of the authorities. Stokes v. Wall, 112 Ga. 349, 37 S. E. 383. 29. Ludwig v. State, 18 Ind. App. 518, 48 N. E. 390; Application of Smith, 120 Iowa 128, 101 N. W. 875; Collins v. Barrier, 64 Miss. 21, 8 So. 164; Clarke v. Foltyn, 82 Neb. 610, 118 N. W. 119. Conferring jurisdiction on ap- peal.— In Nebraska in an appeal by remonstrators from the decision of the licensing board granting a liquor li- cense, jurisdiction is conferred upon the district court by giving notice of the intended appeal and filing, within a reasonable time in said court, a transcript of the proceedings had upon the hearing before the licensing board. Clarke v. Foltyn, 82 Neb. 610, 118 N. W. 119. A remonstrant cannot appeal from an order overruling his protest against the issuance of the license though he may appeal from the order granting the license. Moores v. State, 58 Neb. 608, 79 N. W. 163. c 276] LICENSING BOABDS AND OFFICIALS. 329 decided thai a qualified voter who appears before the licensing boarn. Lsions of the general law. 36 § 277. Licensing board must act in conformity with powers. The licensing authorities in granting a license musl acl within the powers conferred upon them and if they fail to • their authority pursuant to the law conferring it the li< is void and no protection to the license. 37 So county com- missioners who have only authority to grant licenses for traffic as for instance to wholesalers have no authority to issue a license to retail such liquors. 38 And where the authority conferred upon commissioners to grant licenses is expressly limited to residents of the town or city where the business is to be conducted the au- thority is a special and limited one which they have no right to exceed by granting licenses to any other class or description of persons than those designated in the statute. 39 Again where the of certiorari it is error to receive and consider the affidavits of the in- dividual members of such board on the final hearing and determination of the certiorari. People ex rel. Sprague v. Hoard of Excise of Town of Moriah, 01 Hun (N. Y.) 94, 3G X. Y. Supp. 678. Pennsylvania. — In Pennsylvania it is decided that where the record of an application for a retail liquor li- cense Bhows that the case was heard and considered by the lower court, the Supreme Court will not reverse an order refusing a license, although the lower court filed no opinion and assigned no reason for its action. Quinnton's License, 169 Pa. St. 115, 32 Atl. 101. following Gross's License, 161 Pa. St. 344, 29 Atl. 25. See also Appeal of Thomas, 169 Pa. St. Ill, 32 All. 100 in ease of an application for a wholesale license. An appeal bond is required in Kentucky from an] ho desires to prosecute an appeal with the excep- tion of the county attorney. Hamil- ton v. MeKinney, 23 Ky. Law R. 1341, 65 S. W. 2. Transcript of evidence and proceeding under Nebraska statute see Clarke v. Foltyn (Neb. 1908), lis N. W. 119: Waugh v. Graham, 47 Neb. 153, (J(i X. W. 301. 36. Blair v. Kilpatriek, 40 Ind. 312. 37. Commonwealth v. Holland. 104 Ky. 323. 47 S. W. 216; Cheney v. Coughlin, 2(H Mass. 2m. s; \. i. 744; State v. Voight, 90 X. C. 741; Commissioners v. Kane. 47 X. C. 293. In re Hoyniak License, 9 Kulp. (Pa.) 38. State v. Xewcomb. 107 X. C. 900, 12 S. E. «!>. People v. Davis, 45 Barb. (X. Y.) 494, holding a license granted to a resident of a town oilier than that where the proposed business was to be carried Oil was void. 332 LICENSING BOAKDS AND OFFICIALS. [§ 278 board authorized to grant permits to sell intoxicating liquors issues such a permit in an election district where such sale would be unlawful, the permit is inoperative and a license issued thereon is void. 40 Xor have the officers composing the board of excise authority to insert in the license a limitation, restriction or con- dition which is repugnant to the statute and if they do so it is void. 41 But the fact that a board of aldermen in granting a license did not act in accordance with their usual modes and rules of procedure is held to have no force where the board suspended its rules it being declared that it is within the power of a deliber- ative body to suspend, waive or modify its rules of procedure if it sees fit. 42 § 278. Power of board— time of granting. Where a licensing board can only grant a license during cer- tain hours or on certain days it can only exercise its power in accordance with the statute. 43 And a statute making it unlawful for a board of county commissioners to grant a license within two vears from the date of the filing of a remonstrance against the 40. Strickland v. Knight, 47 Fla. granted at certain stated times it is 327, 36 So. 363. held that the board cannot at a meet- 41. Matter of Breslin, 45 Hun ing held at another time lawfully I N. Y. 210, holding that a clause in suspend its rules for the purpose of a license absolutely prohibiting the granting a new license at once, as sale of liquor on certain days named this cause of procedure deprives those in it, in contravention of statute, opposed to the granting of the license was unauthorized and void. of a reasonable opportunity to be 42. Braconier v. Packard, 136 Mass. heard. Warren Street Chapel v. Ex- 50. cise Commissioners, 56 N. J. L. 411, 43. State v. Kennedy, 1 Ala. 31; 29 Atl. 150. Tlichman v. Stoepel, 54 N. J. L. 486, Calling special meeting.— A li- 24 Atl. 401 ; People v. Albany County censing board may have authority to Excise Commissioners, 3 Park Cr. call a special meeting at which a li- (X. Y.) 501; People v. Commission- cense may be granted yet there should ers, 7 Abb. Pr. (X. Y.) 34; Swan be some general notice thereof given v. Wilderson, 10 Okla. 547, 62 Pac. to enable citizens to appear and object 422. if they should so desire. McNeal v. Where the rules of the licensing Burlington, 56 N. J. L. 443, 28 Atl. board require that licenses must be 552. § 278] LICENSING BOARDS AND OFFICIALS. 333 granting of a License to such applicant ia constitutional. 44 Wh< re action must be taken on a certain day the board must act while it is legally in session and authorized to act. 46 In some - ; the power is conferred upon courts to granl licenses on cei days provided foe by statute. 40 In Iowa it is decided thai i the exercise of the courts' discretion the time for hearing an appli- cation for a permit to sell liquor is not fixed for the term which it is filed, nor before the judge in vacation, an adjourn- A change in the form of municipal government as by a village becoming a city does not alter the law as to the period within which a license cannot be granted after a remon- strance. Smith v. Walker (Ind. S. C. 1909), 89 N. E. 862. 44. wik-ox v. Bryant, 156 Ind. 379, 59 N. E. 1049, following State v. Gerhardt, 145 Ind. 439, 44 N. E. 469. 45. Where a board of excise com- missioners adjourned without day and before the filing of an application for a license and subsequent on the same day reconvened, at which meeting the application was filed, and then adjourned to a day certain it was held that the second meeting on the day of adjournment was unauthor- ized and that tlie nlin»- of the petition at that meet in"; was illegal, and that art inn taken by the board on the day to which it adjourned was not taken by the board as a legally ((instituted one. McNaughton v. Board of Ex- cise, 5 Misc. R. (N. Y.) 457, 26 X. Y. Supp. 229. 40. In Missouri it has been decided thai the county court has jurisdiction under the statute to granl a license at a special term. State v. Mitchell; 127 Mo. App. 455, 105 S. W. 655. In New Jersey it has been decided that the courl of common pleas dees not lose jurisdiction to grant a li- cense by the fad thai the final de- termination was made upon a day oilier than that fixed on the first day of the term to which the matter pend- ing the hearing upon it had been pub- licly and regularly adjourned. Breese v. Winters, (N. J. L. 1909), 72 Atl. 41. The statute provided "that ap- plication for license under this act shall be made on the first day of the session of such court, and the said court shall on that day or on some some other day publicly fixed by said court on said first day, determine in open court on said application, by granting or refusing the same." The court said : " The reasonable con- struction of this language is that it is mandatory in its requirement, that action shall not be taken by the court upon any day other than the first day of the term unless the mat- ter has been publicly and specifically set for such day. It" the matter is not taken up on the firsl day of the term, a day must then lie publicly fixed when it will he taken up. If on the day so fixed the matter be not taken up, the court loses juris- diction unless the matter he publicly adjourned to a day specifically fixed. If the matter tie taken up on the first day, or on the day then publicly fixed, lmt not concluded the day to which it is continued must likewise he publicly fixed." Per Garrison, J. 3;; 4 LICENSING UOAEDS AND OFFICIALS. [§§ 279,280 ment of the term will not ipso facto operate as a dismissal of the application or deprive the court of jurisdiction. 47 § 279. No power to grant license to sell in forbidden locality. Authorities vested with the power of granting licenses must act within the limits of the power conferred and where a license is granted to sell liquor in a locality where the sale of such liquor is forbidden, the license is invalid. 48 So where a license is granted for the sale of liquor within a certain distance of land owned or controlled by any camp meeting association and used for religious purposes and the granting of a license within such a distance is forbidden by statute, the license will be void as granted in excess of the powers conferred. 49 And in a recent case in Texas it is decided that a judgment of the county court in author- izing the issuance of a license by the clerk of the state is not con- clusive of a person's right to engage in the sale of liquor in a place where such sale is forbidden by law, as the fact whether or not such sale has been prohibited is not required to be stated in the petition for a license and the county judge has no jurisdiction to determine such question. 50 A street used both for dwelling houses and business purposes does not come within the terms of a statute which forbids the issuance of alicense to sell in a " purely resi- dential " part of a town. 51 § 280. License board cannot delegate power. In many states the sole and exclusive power to issue licenses is conferred upon certain boards or officials. 52 Where exclusive ] tower to so act, is given to certain officials it can only be exercised JT. Cox v. Burnliam, 120 Iowa 43, 50. Paul v. State (Tex. Civ. 1907), 94 N. W. 265. 106 S. W. 448. 18. State v. Mcllvenna, 21 S. D. 51. Hewritt's Appeal, 76 Conn. 189, 113 N. W. 878. 685, 58 Atl. 231. 49. Sexton v. Board of Excise Com- 52. Schwoarman v. Commonwealth, missioners (X. J. L. 1908), 69 Atl. 99 Ky. 29fi, 38 S. W. 146: Wilson 470. v. Ross, County Assessor, 40 W. Va. 278, 21 S. E. 868. § U81] LICENSING BOARDS AND OFFICIALS. ;;;;- by those upon whom it is conferred. 68 And a license to be of any force must of course be issued by the authority having power to issue it. 54 So where the board of county commissioni i thorized to issue a license and to exercise their discretion in the matter, such board cannot confer upon a county official, such as the county attorney, either as such, or as a simple agent, the power to, or impose upon him the duty of, issuing licenses. 55 And a licensing board which upon the hearing of an application for a license must pass upon the character and standing of the applicant and his citizenship cannot delegate these functions to another person or corporation by issuing the license in the name of one shown not to be the real party in interest, upon the under- standing that such person or corporation will select a person to conduct the business under the license. 56 § 281. Action by officers de facto. As to third persons whose rights are dependent upon the offi- cial acts of a public officer it is sufficient for them to show that he was an officer de facto and this principle applies to one who has taken out in good faith a liquor license which has been granted by an excise commissioner de facto. 57 So where a board of license commissioners was removed by the mayor and a new board which 58. Thorn v. City of Atlanta. 77 57. People v. McDowell, 70 TTun Ga. 661, holding that where authority (N". Y.) 1, 23 N. Y. Supp. 950. See to so ad is conferred upon the board Montgomery v. O'Dell. 67 Hun (N. of commissioners of roads a license Y.) 169, 22 N. Y. Supp. 412; Ward issued by tin' clerk of the board in v. State, 2 Coldw. (Tenn.) 605, 91 the absence of the commissioners and Am. Dec. 270. without their express order and with- Where in a suit by a town to out their knowledge was void. recover the license fee required by 54. Commonwealth v. Sweitzer, 129 a town ordinance to be paid it was an- Pa. St. 644, IS Atl. 569. swered that the election at which the 55. County Commissioners v. Rob- trustees who passed the ordinance iii-Mn. li; Minn. 381. were elected, was not conducted by 56. in re Application of Krug., 72 the then trustees as b but Neb. 576, 101 X. W. 242; Tn re by disqualified persons, the ai Application of Tierney, 71 Neb. 704, was held bad on the ground that the 99 N. W. 518. right of I to exercise their 336 LICENSING BOARDS AND OFFICIALS. [§ 282 he appointed granted a license to an applicant it was held that such license was valid, though the mayor's order of removal was subsequently revoked, as the new board when appointed was a licensing board not only de facto but de jure. 58 But where the acting official has no claim of or color of title to the office it being already full a license granted by him will be of no force. 59 And where the act creating an excise board is unconstitutional the members of such board are not de facto officers as the act is as if it had never been passed and there being no office there can be no officer either de jure or de facto and hence an act done by such board, such as the granting of a license is void. 60 § 282. Ordinance granting license— duty of official to sign. Where a statute requires that a license granted by the board of aldermen shall be signed by a certain official, the duty of such official is a ministerial one the performance of which may be enforced by mandamus. 61 So where the power to regulate the granting of licenses is vested in the mayor and board of aldermen and must be exercised by ordinance, and an ordinance provides what an applicant must do to obtain a license, one of the requisites being the obtaining and presenting of a petition which it is the duty of the board to pass upon as to its sufficiency, if the board of aldermen orders that a license be issued, the mayor, whose office could not be questioned collat- a direct proceeding for that purpose, erally and the answer did not neg- and that a license issued by an excise ative the fact that they were trustees commissioner elected to fill such sup- de facto. Redden v. Town of Coving- posed vacancy and by one of the three ton. 2!) Ind. 118. commissioners confers no right to sell •"".s. Taber v. City of New Bedford, liquors as the office was already full 177 Mass. 107, 58 N. E. 640. and the one subsequently elected had 59. In New York it has been de- even no claim or color of title to the cided that the failure of an excise office. Cronin v. Stoddard, 97 N. Y. commissioner duly elected to file the 271. bond required of him does not create 60. Flancher v. Camden, 56 N. J. a vacancy but affords at the most L. 244, 28 Atl. 82. only a cause for a forfeiture of the «*• Braconier v. Packard, 136 Mass. office which can only be effected by 50. §§ L'S;{, 1'Slj LICKNSINd HOARDS AND OFFICIALS. 3;J7 duty to sign the same is merely ministerial cannot refuse to perform bis duty on the ground that the petition was insuffi- cient. 02 § 283. Clerks should not depart from order of court in issuing. Where the granting of a license by a court is a judicial act the clerk in issuing such license has no right to depart from the terms of the order directing its issuance. In such a case the order of the court is the real permit to sell and not the certificate given by the clerk. 63 § 284. Refusal for violation of law. Where the licensing board is vested with discretion in regard to the granting or refusing of licenses it is no abuse of discretion to refuse a license to one who is shown to have committed viola- tions of the law in the past. 64 In some states provision is made by statute as to the refusal of a license where the appli- cant is shown to have violated the law within a certain time prior to his application. 65 Upon the question of refusal of a 62. State v. Russell, 131 Mo. App. G38, 110 S. W. 667. 63. State v. Brown, 135 Iowa 40, 109 N. W. 1011, so holding in the case of a druggist. 64. Caudill v. Commonwealth, 23 Ky. Law Rep. 2139, 66 S. W. 723. 65. In Kentucky under a statute providing that the application must show thai tin- applicant has not kept a disorderly house within a certain period of time it is held that it is not sufficient evidence within the meaning to justify a refusal to grant the license that he kept a disorderly house on one day by permitting dis- orderly persons engaged in elect inn frauds to assemble about his place of business on election day and that he opened his Baloon on that day in vio- lation of law. City of Louisville v. Hendricks (Ky. C. A. 1909), 116 S. W. 747. The action of a license board in issuing a license to a saloon keeper does not condone the offense of keep- in- a disorderly house so as to pre vent the licensing board from sulise- quently refusing to grant a license on the ground that lie lias kept a dis- orderly house within the period which the statute declares will authorize a refusal of a license. City of Louis- ville v. Hendricks (Ky. c. A. 1909), 11 6 S. W. 747. In Nebraska it lias been held proper under the law in force thereto refuse a license to one who had in the previous year violated the law by obstructing his doors or windows by screen-. Minds or other articles. Bol- ton v. Becker (Neb. 1908), 110 X. W. 338 LICENSING BOARDS AND OFFICIALS. [§ 284 license for violation of the law it is decided that one who has repeatedly violated the law as agent of another is properly re- fused a license for the same place after the license to the prin- cipal has been revoked. 66 And a license to one to sell as a druggist is properly refused where it appears from the evidence as to past sales by him while pretending to carry on the druggist's business that he was not a druggist in good faith but had assumed the name or business for the purpose of retailing liquors. 67 But though past violations of the law by an applicant for a license may be shown, yet it is decided that they may not be sufficient to as a matter of law render him an unsuitable person as it might appear from other evidence that they were committed under such circumstances of palliation, mistake, or deception as to clearly show no intentional or deliberate transgression of the law. 68 And where discretion is vested with the court to grant or refuse a license it does not lose its jurisdiction, in the absence of a statute to that effect, by the fact that the applicant violated the law during the preceding year by a sale to minors. 69 In con- siderating an application for a license the absence of a prosecu- tion and conviction for any infraction of the penal laws of the 14. And when it is proven by un- npon the hearing before an excise contradicted evidence that an appli- board, a witness testified to circum- cant for a license during the preced- stances which, if true, would estab- ing year permitted petty gambling lish the sales of liquor by the appli- in a place of business in his control, cant to a minor during the preceding and even on one occasion exhibited year and the board refused either to extremely lascivious pictures, it is the require the witness to disclose the duty of the licensing board to reject name of the minor or to strike out his petition. Bolton v. Hegner, 82 his testimony it was held to be error. Neb/ 772, 118 N. W. 1096. And Batten v. Klamm, 82 Neb. 379, 117 where on the hearing of a remon- X. W. 991. -trance against the granting of a liq- 6G - Rutherford's License, 2 Pa. Co. uor license it is satisfactorily proven Ct. Rep. 78. that the applicant lias within a year 67. Evans v. Commonwealth, 95 sold or given to a minor malt or Ky. 231, 24 S. W. 632. spirituous liquors, he is not entith id 68. Smith's Appeal, 65 Conn. 135, to a license and his application should 31 All. 529. he denied. In re Phillips. (Neb. 69. Brcese v. Winters (N. J. L. 1908), 118 N. W. 1098. But where 1909), 72 At!. 41. S§ 285,286] LICENSING BOARDS AND OFFICIALS. :;:;;t state is entitled to some weight as tending to show that the ap- plicant has observed the law. 70 § 285. Refusal for violation of law — effect of connection or decree. Violations of the law which will authorize a refusal to grant a license may be established by the records of the court showing the conviction of the applicant. 71 And a decree by consent " in a spirit of compromise " and to avoid litigation to let an injunc- tion against the illegal sale of liquors issue is conclusive against him on a subsequent application for a license. 72 But a conviction from which an appeal was taken and the complaint was sub- sequently discontinued in the appellate court does not disqualify an applicant. 73 And a judgment of guilty rendered by a justice of the peace from which the defendant has appealed is not, pending such appeal, a " conviction " within the meaning of the liquor law. 74 § 286. Qualifications of members of board. A person, although he may be competent otherwise to act as a member of a licensing hoard, may in the particular case by some acl of his be disqualified from so acting. Thus one who signs a petition for a license cannot as a member of the licensing board, 70. City of Louisville v. Gagen Iowa Code providing thai no license (Ky. C. A. 1909), lit', S. \Y. 745. shall bo granted t<> one who 1ms been 71. Livingston v. Corey, 33 Neb. adjudged guilty of any violation of 3(i(i. 50 X. W. 263. the laws relating to intoxicating liq- 72. in re Thoma, 117 Iowa 275. 90 uors within two year- Deri preceding X. W. 581. the making of his application. In re A judgment finding defendant Application of Wilhelm, 124 Iowa guilty of violating his liquor per- 380, 100 X. W. 44. mil. whetheT entered by confession or 73. Horton v. License Cominission- in v. 'til. 'in, Mit of criminal or civil pro- era of Central Falls. 19 R. I. 650, 35 ceedings growing ou1 of such violation Atl. 962. renders him ineligible to receive an- 7I - Smith's Appeal, Go Conn. 135 other permit for two years under the 31 Atl. 529. 340 LICENSING BOARDS AND OFFICIALS. [§ 287 act upon such petition as he cannot be both a petitioner and a judge, and no valid license can be issued where without his vote the board is equally divided. 75 And where a member of a city council which is to pass upon the petition for a license to two per- sons, signed such petition and upon discovering that his signa- ture would disqualify him from acting on the application, erased his name and another petition was drawn up without his signature asking for a license for one of such persons, it was decided that he was disqualified by such signature and that the disqualification was not removed by the erasure and the withdrawel of the peti- tion. 76 Also one who thinks it is evidence of immorality for one to engage in the sale of liquors is not a competent person to sit as a juror upon the trial of an application for a license to sell intoxicating liquors. 77 And it has been decided that in granting or refusing a license, county commissioners act not as judges but as administrative officers, and may consider all information which comes to them not only through the public hearings but such as may be derived from the personal knowledge and investigation of each, and the absence of one commissioner from a public hearing does not disqualify him from taking part in the deci- sion. § 287. Liability of members of board. The action of the members of a licensing board in passing upon an application for a license is in its nature judicial at least to the extent of relieving them for liability for damages for a 7r». Powell v. Egan, 42 Neb. 482, 1909), 120 N. W. 159. 00 X. W. 932; Foster v. Frost, 25 77. Fletcher v. Crist, 139 Ind. Neb. 731, 41 N. W. 647, citing State 121, 38 N. E. 472. See also Chand- v. Kaso, 45 Neb. 007, 41 N. W. 558; ler v. Ruebelt. 83 Ind. 139; Keiser State v. Weber, 20 Neb. 407, 30 N. W. v. Lines, 57 Ind. 431. 53] : Vanderlip v. Derby, 19 Neb. 165, 78. Hewitt's Appeal, 70 Conn. 685, 20 X. W. 707. 58 Atl. 231. 70. Rosenberg v. Robrer (Neb. § 287] LICENSING BOAEDS AND OFFICIALS. 341 refusal to issue the license. 79 And such officials arc not liable criminally for mere mistakes. 80 They may, however, be indicted for wilful and corrupt conduct in respect to the granting of a license. 81 7f>. Halloran v. McCuIIough, 68 Ind. 179; Sargent v. Little, 72 N. H. 555, 58 Atl. 44; People v. Jones, 54 Barb. (N. Y.) 311. A city is not liable for the act9 of local licensing officials. McGinnis v. Medway, 176 Mass. 67, 57 N. E. 210. SO. People v. Jones, 54 Barb. (N. Y.) 811. 81. People v. Norton, 7 Barb. (N. Y.) 477: People v. Woreley, 1 N. Y. Supp. 748 ; Attorney General v. Jus- tices, 27 N. C. 315. 342 EIGHTS UNDER LICENSE. rj 288 CHAPTER XIII. RIGHTS UNDER LICENSE. Section 288. Terms of license as limiting right. 289. When license takes effect. 290. Duty to obey law — as to employes. 291. Licensee may sell by agent. 292. Personal representatives of licensee no rights under. 293. As to place of sale. 294. Where license board prescribes unauthorized hours. 295. License to firm — to member of. 290. License to officer of corporation. 297. Duration of license. 298. License not assignable. 299. License tax certificate assignable in New York. 300. Transfer of license in Pennsylvania. 301. License as subject of levy and sale. 302. Rights of licensee as to stock and fixtures. § 288. Terms of license as limiting rights. A license in so far as it legally expresses the rights which the licensee possesses by virtue thereof is a limitation upon him in respect to sales thereunder and he must confine himself in the exercise of these rights to the terms of the license. 1 Where there is a classification as to the sales of liquor and different licenses are issued for the different classes, a person who obtains a license to sell liquor according to a certain class must confine himself in makno; his sales to the class to which he is restricted by his license. 2 So one having no authority to sell liquors for use as a 1. Benson v. Moore, 15 Wend. (N. Separate license for distilling Y.) 200. and selling.— Where the statute reg- 2. Commonwealth v. Mandeville, ulating the license tax provides for a 142 Mass. 469, 8 N. E. 327. separate license in different amounts § 289] RIGHTS UNDER LICENSE. ;;j;; beverage cannot sell them for that purpose. 3 And where a person was licensed to sell intoxicating liquor only for medicinal, mechanical and chemical purposes, it was held that he had no ground of exception to a charge that his license gave him " no right to keep for sale or to sell intoxicating liquors to be used as a beverage and gave no right to sell or to keep for sale intoxi- cating liquors to be drunk on the premises." 4 So where the license specifies in what quantities sales may be made, the licensee in making sales must conform to the terms of the license and where he exceeds the right conferred thereby he will be liable as for selling without a license. 5 In New York it is decided that the traffic must in all cases be confined to that particular line and character of traffic set forth in the application itself and that the application and certificate together must be interpreted to mean a license to traffic in liquor only in the field and to the extent declared in the application, it being immaterial that the traffic is not restricted by the terms of the certificate. 6 § 289. When license takes effect. So far as the rights of the licensee are concerned a license takes effect from the date of its issuance. 7 And the officials designated to grant licenses have no power to grant one to operate re- trospectively so as to cure a past offense. 8 And a license which for distilling and selling, the two 1ms- 4. Commonwealth v. Mandeville, inesses being clearly separated, it is 142 Mass. 469, 8 N. E. 327. decided thai under a license to dis- •">• Hainline v. Commonwealth, 1.3 till there is no authority to 3ell, and Bush (Ky.) 350. especially not in a county which lias <»• Matter of Barnard. Tv rr voted prohibition. Franklin v. state Smith, 48 App. Div. (X. Y.) 423. 63 (Ala. 1908), is So. 348. N. Y. Supp. 255. Wholesaler. — License statute de- ~. Keiser v. State, 7S Tnd. 430; fining construed. Jones v. Yokum Commonwealth v. Welch, 144 Mass. (S. D. 1909), 123 N. W. 272. 356, 11 V E. 423. 3. State v. Adams, 20 Iowa 486; s - Edwards v. state. 22 Ark. 253; Commonwealth v. Frost, 155 Mass. Miles v . State, 33 [nd. 206; Brown 273. 34 N. F. 334. v. State, 27 Tex. 335. 344 RIGHTS UNDER LICENSE. [§§ 290,291 has been antedated will not legalize sales previously made. 9 So in a case in New York it is said that where a sale is not lawful when made a license cannot have a retroactive effect so as to legalize such sale. 10 So it is declared that a license should bear the date of the day when issued, takes effect from that date, and does not relate back to the order of the board of commissioners granting the license, though so dated, so as to legalize sales made between the date of the order and the issuing of the license. 11 Again where sales of liquors are expressly forbidden by statute, unless by one duly licensed, there can be no recovery for the price of liquors sold by one between the time he petitioned for a license and the date the license was granted. 12 But the fact that a license antedates the date on which it was ordered does not affect its validity, as in such a case the license takes effect from the date of its delivery and not from its date. 13 § 290. Duty to obey law — as to employes. A licensee cannot evade his responsibility by hiring a com- petent and careful bartender and giving him instructions to obey the law, but it is his duty to use proper care and diligence to see that the business is carried on in the manner which the law requires, and whether such diligence has been used by him is a question of fact. 14 § 291. Licensee may sell by agent. Under a license granted to the owner of liquor, his agent, or one in his employ, may sell, and such person will not be responsible for selling without a license. 15 But though a licensee may sell ». State v. Mancke, IS S. C. 81; 13. State v. Leonard (Kans. City Brown v. State, 27 Tex. 335. C. A. 1!)09), 116 S. W. 14, citing i<>. Kingston v. Osterhoudt, 23 Hun State v. Hughes, 24 Mo. 147; State (N. Y.) 00. v. Tate, 07 Mo. 488. 11. Keiser v. State, 78 Tnd. 430. 14. Policy v. Wills, 141 Ind. 688, 12. Bolchic v. Randall, 107 Mass. 41 N. E. 354. 121. 15. State v. Keith, 37 Ark. 96; § 292] RIGHTS UNDER LICENSE. 345 by his servant, or barkeeper, the selling must be under hie con- trol. 18 As is declared in a case in Nebraska, a license to sell intoxicating liquors is in the nature of a personal trust, and tin- applicant for such privilege must be a person able, willing and competent to carry out such trust, and not delegate it entirely to others whose character may not be such as the law requires of the licensee. 17 And in a recent case in Indiana, it is decided that a license to sell intoxicating liquor will not protect an em- ployee of the licensee from liability for sales made by him as such within the period for which the license was granted after the licensee has permanently changed his residence to a county other than that in and for which the license was granted. 18 And also in Texas it is decided that a non-resident of a state cannot violate the laws of the state with impunity by means of an em- ployee and the latter will be regarded as a person " engaged in the business " of liquor selling within the meaning of the statute. 19 And where the contract is alleged to be one of employ- ment and the evidence in the case shows not the creation of an agency between the person in charge and the licensor but rather a sale, the license of the vendor is no protection. 20 § 292. Personal representatives of licensee no rights under. The right to carry on the liquor business has been held to be in the nature of a license to the party who complies with the Reiser v. State, 58 Ind. 370; Runyou See Krant v. State. 47 Ind. 519, v. State, 52 Ind. 320; Pickens v. holding that one who has obtained a State, 20 Ind. 116; State v. Hunt. permit to sell intoxicating liquors and 20 Kan. 762j People v. BufTum, 27 who afterward voluntarily removes Hun (N. V.) 216. from the state by the act of removal 16. Commonwealth v. Branamon, 8 forfeits and abandons his rights un- B. Mon. (Kv.) 374. ( ' ( ' r " K> i l(, '"iit and can not volun- 17. /„ re Application of Krug., 72 ,:,ri, - v thereafte * continue the bus- Neb. 570, 101 N. W. 242, quoting from inesa U > meana "'" an a -" nt - Watkins v. Grieser, 11 Okla. 302, 66 ,!> ' La Norris v. State, 13 Tex. App 33, so holding in reference to a con- ductor in charge of a Pullman car. is. State v. Dudley, 33 Ind. App. .... ,, .. ' . iA _ . . _._ , -•>• Eeath v. State. 10. > Ind. 342. 4 Pac. 332. Per Burford, C. J. is. State v. Dudley, 33 In 640,71 N. E. 075. N< E ~ 9 ~ 340 RIGHTS UNDER LICENSE. [§ 293 statute which cannot pass over to the personal representatives of the party holding it and is not an asset of his estate. 21 And in the absence of a statute permitting it, the legal representatives of a deceased licensee cannot recover any part of the amount paid for the liquor license because of the latter's death before the expiration of the license. 22 But in an early case in Wisconsin it is decided that an administrator need not take a license for the sale of spirituous liquors, to enable him to dispose of such liquors belonging to the estate in payment of a debt or otherwise. 23 § 293. As to place of sale. One license will not authorize the person or persons licensed to conduct the business in more than one place, or generally at any other than that specified in his license or application there- for. 24 So in a recent case in Alabama it was held that a license 21. People v. Sykes, 96 Mich. 452, 56 N. W. 12, holding that an admin- istratrix of her husband's estate could not carry on the business of liquor selling in which he was engaged with- out first paying the tax and giving a new bond. Grimm's Estate, 181 Pa. St. 233, 37 Atl. 403. See also Mueller's Estate, 190 Pa. St. 601, 42 Atl. 821; Bucks Estate, 185 Pa. St. 57, 39 Atl. 821, 64 Am. St. R. 816; Aschenbach v. Carey (Pa. 1909), 73 Atl. 435; Blumenthal's Petition, 125 Pa. St. 412, 18 Atl. 395. 22. Wood v. School Dist. 80 Neb. 722, 115 N. W. 308. 23. Williams v. Troop, 17 Wis. 463. 24. Commonwealth v. Holland, 104 Ky. 323, 47 S. W. 216; State v. Walker, 16 Me. 241 ; Commonwealth v. Estabrook, 10 Picks. (Mass.) 293; Mason v. Severance, 2 N. H. 501 ; People v. Davis, 45 Barb. ( N. Y. ) 494. In the case of a license to a distiller who is not required by the statute to set forth in his application the particular place at which the business is proposed to be conducted it has been decided in Pennsylvania that he may sell at any one place within the county. Britton v. Com- monwealth, 105 Pa. St. 311. A brewer's license under a stat- ute authorizing a person under such a license to sell at wholesale when taken out in one county will nermit the licensee to sell at wholesale in any county in the state without obtaining a license for that purpose in each county. State v. Capitol Brewing & Ice Co. (Ala. 1909), 50 So. 312. Transfer authorized by stat- ute. — The Connecticut statute author- izing the county commissioners to permit the removal of a licensed dealer from one place to another in the same town does not purport to empower the commissioners, to hear and determine an application by an unlicensed person for a removal per- mit or transfer of an existing license from one place to another. D'Amato's Appeal, 80 Conn. 357, 68 Atl. 445. In New Jersey a license to sell in- e 293] RIGHTS UNDER LICENSE. 347 to sell liquors in a certain saloon < I i < 1 not authorize the Bale by the licensee of such liquors in or at his house, half a mile away, from such saloon. 25 And a license issued to a man to keep a saloon at a certain designated number does not authorize him to maintain as many bars as he desires in different parts of a build- ing located at such number and which are in no way connected.'-" 1 ISTor is a license to sell liquors at one place a defense to an in- dictment for selling them at a different place, although the two bars are in adjoining buildings and there is a communication between them. 27 And a license to a person to sell liquor in con- nection with the business of keeping a hotel does not authorize him after the hotel has been burned and not rebuilt, to sell liquor in another building located upon the same premises upon which which the hotel was located, as such a selling is not in connection with the business of keeping a hotel. 28 And where though the license did not contain the description of the property where the licensee was authorized to sell liquor, yet where the verified petition for the license and the order of the court instructing its issuance did particularly describe the premises, it was held the licensee had no authority to sell at any other place than that so described. 29 Nor does a general license to retail spirituous liquors toxicating liquors in cities of the 27. State v. Fredericks, 16 Mo. second class under the statute may 382. be transferred by the licensing au- 28. People v. Corey (N. Y. App. thorities, not only from one person to Div. 1909), lis \". V Supp. 23. another bul from one location to an- Under a license to one to keep a other. Henkel v. Boy, 74 X. J. L. tavern in " a brick house " it has been 56. 64 Atl. 960. decided thai the licensee may use a As to right of appeal from de- room adjoining it which is constructed cision refusing transfer sec Wake- of wood and nol connected by any man's Appeal, 74 Conn. 313, 50 Atl. doorway with his main building, pro- 733; Lester v. Price, 83 \'a. 648, 3 vided the separate room constitutes S. E. 529. in good faith a pari of the tavern. 25. Johnson v. State. 152 Ala. Gl. Gray v. Commonwealth, 9 Dana (Ky.) 44 So. .")."».">. 300, 35 Am. Dec. 136 n. 26. Malkan v. City of Chicago, 217 29. United States v. Powers, 1 111. 471. 7:. V E. 548, 2 L. R. A. Alaska ISO. (N. S.) 488 n. 348 EIGHTS UNDER LICENSE. [§ 293 -within a county authorize the sale of such liquors within an area within such county which is covered by a special prohibitory law. 30 But while a liquor dealer may by his license be re- stricted as to where he may carry on his business, having refer- ence to the location of his place, yet under the right given him thereby, it is decided that he may send out agents in the state and take orders for goods to be shipped from there which he has in stock without obtaining a license from the authorities of each city or town wherein his agents have made contracts of sale. 31 And in New York it has been decided that where a liquor tax certificate designates a particular place on a ball ground, the holder is not confined to making a delivery at such places, but that delivery in other parts of the ground may be made where such delivery is an incident of the business which might be carried on under the certificate. 32 And the mere removal of a 30. Barnes v. State, 49 Ala. 342. 31. Haug v. Gillett, 14 Kan. 140; See also McCarty v. Gordon, 10 Kan. 35. Under the statutes in force in Kentucky, requiring wholesale liq- uor dealers in beer to have a license for the sale thereof by wholesale, such dealers cannot establish an agency at one point in the state and send its wagons from such point and sell at other points in a county in which the local option law is in force. Jung Brewing Co. v. Commonwealth, 30 Ky. Law Rep. 267, 98 S. W. 307. A statute providing that "no per- son without a state license therefor shall * * * receive orders for spiritu- ous liquors" applies to one who as it of a wholesale druggist receives an order for such liquors in another place than where the business is lo- cated. State v. Swift, 35 W. Va. 542, 14 S. E. 135. Compare State v. Iloja, 66 Conn. 259, 33 Atl. 917. hold- ing that a soliciting of orders by an agent was authorized by statute. 32. Matter of Lyman, 160 N. Y. 96, 54 N. E. 577, affirming 40 App. Div. 46, 57 N. Y. Supp. 634, wherein the court said: "The business of trafficking in liquors, authorized by the certificate in a park or upon pub- lic grounds where people congregate on special occasions, comprehends something more than the right to sell over a bar at a designated point to such persons as go to the bar to be served. It fairly includes the right of the holder to distribute the liquor in glass by waiters to the patrons of the public place where the bar is lo- cated. The regulations of the place may provide for seating the public upon stands and other convenient places, and restrict them from access to Ihe whole grounds. In such cases it would seem to be reasonable to assume that a person authorized to sell liquors to the public frequenting the place should have the right to reach the public from his bar on the SS 294 295] RIGHTS UNDER LICENSE. 349 licensed retailer to another county neither abrogate* his lie nor renders his clerk- or agenl who continues to carry on the business at the same place subject to an indictment under the statute. 88 § 294. Where license board prescribes unauthorized hours. Where there is no authority in a licensing board or official to prescribe the hours within which liquors may be sold by a licensee, the fact that certain hours are prescribed by such official in "ranting the license does not interfere with the right of the licensee to sell at such hours as the general law permits. 34 § 295. License to firm — to member of. A license to one partner individually confers no authority upon his co-partners or the firm to engage in the liquor traffic. 35 And a license to sell vinous or spirituous liquors issued to a firm grounds through waiters employed to distribute to the patrons of the place what he was authorized to sell and deliver. The license includes not only the right to sell over a bar but whatever is fairly included in or incidental to the business author- ized." Per » CBrien, J. 88. Thompson v. State, 37 Ala. 151. 84. Franklin County Liquor Li- censes, 26 Pa. Co. Ct. R. 152. 85. Alabama.— Long v. State, 27 Ala. 32. Indiana. — Shaw v. State, 56 [nd. L88. Iowa — State v. McConnell, 90 Iowa 197, .-.7 X. W. 707. Maine.— Webber v. William--. 36 Me. 512. Virginia. — Commonwealth v. Hall, 8 Graft. 588. " A license to retail affords pro- tection only for those acts, which, in law, are merely the acts <>r" the per- son to whom it is granted. If it is granted to an individual, it affords protection only for those acts which, in law, are merely his acts as an in- dividual. If it is granted to a part- nership, it affords protection only for those acts which, in law, are the acts of the firm, a license to an individual cannot be a license to a partnership." Long v. State. 27 Ala. 32, 36. Per Riee. J. A sale by an unlicensed mem- ber of a firm dues not come within the rule authorizing a sale by an agent. Shaw v. State. 56 Ind. 188. Presumption as to sale. — In a suit under the statute by a person to whom the purchaser of liquor was in- debted to recover the amount paid for liquor to a firm the presumption i-. it appearing that one of the mem- bers of the firm had a license to sell, that the sale was made by such mem- ber. Webber v. Williams. 36 Me. 512. 35• Connecticut Breweries Co. v. pealed by Chapter 90, Laws 1895, or Murphy, si Conn. 1 !:>. 7" Atl. 450, by section 1522, R. T.. 1905. Evans holding thai such sales being unau- v. City of Redwood Falls. 103 Minn. thorized and illegal a note given to 314. 115 X. \Y- 200. the corporation in consideration there- ■'-• Hendersonville v. Price. 96 X. for is void. C. 423, 2 S. E. 155. •»<>. Brown v. Lutz, 36 Neb. 527, 54 *'•■ Carroll v. Wright, 131 Ga. 728, X. W. 860. 63 S. E. 2c.1t. 41. Disbrow v. Saunders, 1 Tien. Year refers to calendar year.— (X. V. ) 149. In Minnesota it is de- Engelthaler v. Linn County, 104 cided that the requirement of the Iowa 293, 73 X. W. 578. 352 EIGHTS UNDER LICENSE. [§ 298 which provided that the status existing at the time a vote is taken on local option shall not be changed until the first of October following next thereafter, it was decided that one making due application for a liquor tax certificate on May first, 1908, in a town which formerly allowed the issuance of licenses was en- titled to such license until October first following, although the town voted against licenses at a meeting held in November, 1907. 44 § 298. License not assignable. A license to sell intoxicating liquors is a personal permit merely, which is not assignable in the absence of statutory au- thority and is not an asset subject to the demands of creditors and affords no protection to another than the licensee or his representative in the conduct of a retailing business. 45 So where 44. People ex rel. McEachron v. Bashford, 128 App. Div. (N. Y.) 351, 112 N. Y. Supp. 502. 45. Alabama. — Barnard v. State (Ala. 1909), 48 So. 483. Florida. — State v County Commis- sioners, 22 Fla. 1. Indiana. — Strahn v. Hamilton, 38 Ind. 57. Ken tuclcy. — Commonwealth v. Bryan, 9 Dana 310. Massachusetts. — Tracy v. Ginzberg, 189 Mass. 2G0, 75 N. E. 037. Missouri. — Mitchell v. Branham, 104 Mo. App. 480, 79 S. W. 739, under R. S. 1899, § 2992. Nebraska. — State v. Lydiek, 11 Neb. 366, 9 N. W. 500. York. — Alger v. Weston, 14 Johns. 231. North Carolina. — State v. Mc- Neely, 60 N. C. 232. Pennsylvania. — Grimm's Estate, 181 Pa. St. 233. 37 Atl. 403. . — State v. Bayne, 100 Wis. 35, 75 N. W. 403. Compare In re May 5, Am. Bank R. I. A license to manufacture and sell intoxicating liquors only author- izes the sale by the party or parties named therein. State v. McNett, 5 Penn. (Del.) 334, 61 Atl. 869. A bankrupt may be compelled to join with a receiver in a petition for the transfer of a license where the statute permits a transfer. In re Wiesel, 173 Fed. 718. License for tavern. — In an early cause in Kentucky it was declared that the right to keep a tavern was a personal privilege and not transfera- ble. Commonwealth v. Branmon, 8 B. Mon. (Ky.) 374. Not subject of chattel mort- gage. — A liquor license being a mere privilege and not a property right is held in New Jersey 1" be incapable of being the subject of a chattel mort- gage. Feigenspan v. Mulligan. 03 N. J. Eq. 179. 51 Atl. 191. But in Texas it is decided that under the § 299] RIGHTS UNDER LICENSE. 353 a sale and transfer of a license is prohibited by law and such a sale forms a part of the consideration for a promissory note, such note is wholly void. 40 In some states a transfer of a license is authorized by statute, and where this is the case a license can only be transferred in the manner authorized. 17 § 299. Liquor tax certificate assignable in New York. Under the !Xe\v York statute a liquor tax certificate is in the nature of personal property, 48 and it ami the rights thereunder are subject to transfer and assignment. 49 And it may be assigned without delivery to one who has advanced money to enable the licensee to procure it. 50 And the statutes allowing a transfer of the liquor tax certificate, if a party in consideration of an agree- laws of that state a license may be mortgaged. Nieolini v. Langeruvan (Tev. Civ. 1907), 104 S. W. 501. The purchaser of a saloon from one who has been licensed to sell in- toxicating liquors is not protected in conducting such business, by the li- cense of his vendor. Heath v. State, 105 Ind. 342, 4 N. E. 901. 46. Arnett v. Wright, 18 Okla. 337, 89 Pac. 1110. A promissory note a part con- sideration for which is the transfer of a license, which transfer is not authorized by statute is to that ex- lent without consideration. Strabn v. Hamilton, 38 Ind. 57. See also Sanderson v. Coodrieh, 46 Barb. (N. V.) CIO. 47. Hill v. Sheridan, 128 .Mo. App. 415, 107 s. W. lit',; Keiper's License, 21 Pa. Super, ft. .".12. citing Blumen- thal's Tet it ion, 125 Pa. St. 412, 18 Atl. 395. In Pennsylvania, under the rtat- ute of 1858 which provided tor trans- fers and which was not repealed by the act of 1SS7. where a person to whom a liquor license had been granted died or removed in the in- terval between the granting or award- ing of the license by the court and the payment of the licensee fee, the license could be transferred by the court to another person. Umholtz's License, 191 Pa. St. 177, 43 Atl. 75. 48. Niles v. Mathusa, 162 N. Y. 540, 57 N. E. 184, aff'g 20 App. Div. 483, 47 N. Y. Supp. 38. 49. Matter of Jenney, 19 Misc. R. (N. Y.) 244, 44 N. Y. Supp. 84; Niles v Mathusa, 19 Misc. R. (N. Y.) 96, 44 X. Y. Supp. 88. Right of commissioners to re- voke transfer. — Where the commis- sioners of excise have recorded a resoluion to grant a transfer of a license they cannot reconsider or re- voke their decision on the ground of their mistake and having recorded the resolution though under such cir- cumstances, mandamus will lie to compel them to complete the trans- fer ami deliver the written permit. People ex rel. Cochrane v. Wells, n }!isr. R. (N. V.i 239, 32 X. Y. Supp. 973. BO. Niles v. Mathusa, 20 App. Div. (X. V.) 4s:;. 47 X. V. Supp. 38, o/fd L62 X. V. 546, 57 X. K. 184. and 354 RIGHTS UNDER LICENSE. [§ 299 nient to pay a certain amount makes an effective transfer thereof to the one making such promise, the one transferring the license is entitled to recover the sum agreed to be paid. 51 And a county treasurer is not justified in refusing to consent to the transfer of a liquor tax certificate upon the ground that a verbal complaint has been made against the holder of the certificate that he was carrying on his liquor business in a room connected with his grocery. 52 The certificate is not, however, a chattel within the purview of the chattel mortgage act, 53 and is not subject to levy and sale. 54 holding that where one has advanced money to enable a person to procure a liquor tax certificate and the one to whom it is issued makes an agree- ment to assign the same to the one advancing the money upon demand, it is sufficient if a demand is made at the time that a judgment creditor ap- plies for a receiver of the licensee's property in supplementary proceed- ings and laches is not established by the fact that there was a delay of seven months in making such de- mand. The tax certificate is personal property within the meaning of the statute ( Statutory Const. Act. Laws 1892, ch. 677, § 4) that "everything except real property which may be the subject of ownership " is personal property. People v. Durante, 19 App. Div. 292, 45 N. Y. Supp. 107.3. The tax certificate is not a chattel within the purview of the Chattel Mortgage Act (1 R. S., 9th Ed., 2013) and a transfer thereof as security for a loan is valid as against a subsequent judgment creditor of the assignor, al- though not filed as a chattel mort- gage. Niles v. Mathusa, 162 N. Y. 546, 57 N. E. 184, aff'g 20 App. Div. 483, 47 N. Y. Supp. 38. 51. Rubenstein v. Kahn, 5 Misc. R. (N. Y.) 408, 25 N. Y. Supp. 7 (in. 52. People ex rel. Ryan v. Manzer, 18 Misc. R. (N. Y.) 292, 41 N. Y. Supp. 1075. 53. Niles v. Mathusa, 162 N. Y. 546, 57 N. E. 184, aff'g 20 App. Div. 483, 47 N. Y. Supp. 38. The statutory provision in re- lation to filing chattel mortgages does not apply to the assignment of a liquor tax certificate, made to secure repayment of money advanced to pay therefor and for goods purchased, especially as against a receiver of the licenses appointed in supplementary proceedings. Matter of Jenny, 19 Misc. (N. Y.) 244, 44 N. Y. Supp. 84. Where one had executed a chattel mortgage upon his " right, title and interest to a license to sell beer or to a renewal thereof " which license was issued under the old law the mort- gagee was held to have no right to the tax certificate issued under the new law as the certificate was not in existence when the mortgage was given, is not a chattel and cannot be mortgaged. The court however de- termined that the mortgage would be good in equity as a contract to assign the new certificate when acquired. McNeeley v. Welz, 166 N. Y. 124, 59 N. E. 697, aff'g 20 App. Div. 567, 47 N. Y. Supp. 310. 54. The tax certificate is not sub- i d to levy and sale as it is a mere § 300J RIGHTS UNDER I. < ENSE. 355 § 300. Transfer of license in Pennsylvania. The act of April 20, L858, as to transfer of Licenses wai qoI repealed by act of May 13, 18S7. 55 Under the ad of L858, in Pennsylvania, the uniform practice of the court has been to order a transfer upon a proper case shown to the court. 58 By ad of July 15, 1897, P. L. 297, a transfer of a license from place to place, was authorized for "partial or complete destruction" chose in action incapable of seizure or delivery by the sheriff and is not within the description of personal property bound by execution as laid down in the Code of Civil Procedure (§§ 1405, 1410, 1411) and is not sub- ject to levy and sale thereunder at least unless a warrant of attachment has been issued and a levy made by virtue thereof. McNeeley v. Welz, 106 N. Y. 124, 59 N. E. 697, aff'g 20 App. Div. 567, 47 N. Y. Supp. 310. 55. Blumenthal's Petition, 125 Pa. St. 412, 18 Atl. 395; Rohm's License, 14 Pa. Co. Ct. 202. 56. Leibeknecht's License, 14 Pa. Co. Ct. R. 571, citing Summa's Li- cense, 12 Pa. Co. Ct. R. 667 ; Heilig's License, 12 Pa. Co. Ct. R. 538; Breen's License, 2 Pa. Dist. R. 652; Doyle's License, 6 Kulp. 356 ; Hav- len's License, 3 Pa. Co. Ct. R. 474; Leahey's License, 13 Pa. Co. Ct. R. 430. Transfer to executor. — See Theis's Ca-e. f, I 'a. ('<.. Ct. R. 396. What petition for transfer of license should contain. — See Mc- Kibbiifs License, 11 Pa. Super. Ct. 421. Appeal from order for trans- fer. — An owner of premises occupied by one in enjoyment of a retail liq- uor license and who appeared as a remonstrant against the transfer of the license lias sufficient interest in the proceeding to appeal from an order directing a transfer. McCabe's License, 11 Pa. Supp. Ct. 560. Refusal of consent by insol- vent to transfer. — Where the holder of a license, who has become in- solvent, removes from the premises, the court will order a transfer of the license, where he refuses his con- sent thereto, upon the payment to him of such sum of money as may be due him for the cost and expenses of said license for the time it was not used by him. Leibeknecht's License, 14 Pa. Co. Ct. R. 571; See Summa's License, 12 Pa. Co Ct. R. 667. Where the right under a li- cense has been forfeited by the holder a transfer of the same may be made at the instance of the party owning the premises where the right under the license was exercised, it ap- pearing that such owner had no knowledge of the violations for which such right under flic license was for- feited. Besse's License, 28 Pa. Co. Ct. P. 353: Quirk. Kelly. Burchill, Kearney, < .'ea rhart and Boylon Li- censes, 17 Pa. Co. Ct. 327. The court of quarter sessions in Pennsylvania has no jurisdiction to authorize the transfer of a whole- sale liquor license from <>ne place to another. Laib & Co. \. Hare. 163 Pa. St. is 1. :;o Atl. 163. Can only transfer license in accordance with statute. — Kel- lar's Petition, '.» Pa. Dist. R. 340; Hotel Cambridge License, 20 Pa. Co. (t. 229. 350 RIGHTS UNDER LICENSE. [§ 301 of the premises. In construing this act it was declared that it should have a reasonable construction having regard for the purpose for which passed and should neither be construed too liberally so as to permit a transfer upon every trivial pretext, nor too strictly so as to prevent the transfer in cases plainly within the mischief existing under the old law. 07 In this state it has been decided that an agreement to repay in installments a loan made to carry on the liquor business and to transfer and assign the license and stock and fixtures to such persons as the creditor may designate, is not against public policy. 58 § 301. License as subject of levy and sale. A license being not property but a mere personal privilege is not regarded as the subject of a levy and sale. 59 So, in Penn- sylvania, it is decided that the sheriff cannot levy upon a license and sell it in the ordinary way as he cannot make title to a pur- chaser. 60 And this is the rule in New York, where a liquor tax certificate has been given by statute more of the characteristic of property probably than in any other state. 61 But, in Con- necticut, a statute has created the right to attach liquor licenses, the certificate being, under such statute, treated as representing the privilege conferred, and the custody of the certificate by the attaching or levying officer stands for the custody of the law, through and by him, of the intangible franchise which is the only thing of value. 62 And in this state until consent to a trans- fer of a liquor license has been given by the county commissioners and the transferee has complied with the other requirements of 57. McCabe's License, 11 Pa. Super. subsequent to the adjudication of Ct. 560. his bankruptcy. Barnard v. State - 58. Germantown Brewing Co. v. (Ala. 1909), 48 So. 483. Booth, ]. Bankruptcy has no effect to 408. cancel the privilege or permit held by 01. See § ante herein the licensee to carry on liis business *> 2 - Quinnipiac Brew. Co. v. Hack- of selling liquors under his license barth, 74 Conn. 392, 50 Atl. 1023. 8 302] RIGHTS I NDEB LI< ENSB. 357 the law, the license remains the property of the original licensee and is subject to attachment by his creditors. 63 In an early case, in New Hampshire, it is decided that, spirituous liquors may be taken on mesne process or execution and sold on execution for the debt of the owner; they not being exempl by implication from such process by law as to regulating and licensing their sale, for a particular purpose only and prohibiting their sale for any other use or purpose. 04 § 302. Rights of licensee as to stock and fixtures. The rights conferred by a license expire with the expiration of the term mentioned therein. 65 And it is said that " If retailers of spirituous liquors desire to be protected they had better procure their licenses before they commence retailing; or, if their licenses expire, then stop retailing until they are renewed * * * other- wise they take the risk." °° So it has been decided that a license expires at the end of the period for which it was granted without regard to the amount of stock the licensee may have on hand. If it were otherwise the licensee might purchase a large stock just- before the expiration of the license to last him for a long period and thus evade the law. 07 But in Maryland, though the license of one authorized to sell at retail has terminated, it is decided that he is not thereby precluded from disposing of his fixtures and stock in trade, but that he may lawfully sell and dispose of the same though not at retail. A sale of them at auction or by private sale by wholesale at one time, in good faith, for the purpose of closing his business and not in the prosecution of the regular trade, is held not to be an infraction of the license laws. 68 <;:?. Gilday v. Warren, 69 Conn. 66. Reese v. City of Atlanta, 63 237. 37 Ati. 494. Ga. 344. Per Warner, C. J. G4. state v. Johnson, 33 X. H. 67. United States v. Angell, 11 441. Fed. 34. <:•"• State v. McNett, 5 Penn. (Del.) 68. Forwood v. State. 40 Md. 531. 334. 358 HE VOCATION, SURRENDER AND REBATE. CHAPTER XIV. REVOCATION, SURRENDER AND REBATE. Section 303. Right to revoke generally. 304. Power of municipality to revoke — as to rebate. 305. Where statute specifies causes. 306. Effect of expiration of license. 307. Revocation by repeal of license law. 308. Where license contains provisions as to forfeiture. 309. Grounds of revocation generally. 310. Unlawful sales. 311. False statements in application. 312. Statement as to continuous occupation — suspension by fire or accident. 313. Violation of law — conviction for. 314. License to partners. 315. License to club organized to evade law. 316. License to hotels. 317. Petition for revocation. 318. Answer. 319. Parties. 320. Who may intervene. 321. Procedure to revoke. 322. Necessity of notice of proceeding. 323. Proceedings — appointment of referee. 324. Exercising power to revoke — mandamus. 325. Evidence. 320. Staying proceedings. 327. Not entitled to trial by jury. 328. Costa of proceedings. 329. Reviewing action — certiorari. 330. Right to rebate — no statute. 331. " " " — where statute. 332. Surrender — right to rebate — New York. 333. Surrendi r — ri^l ♦ to rebate — New York. § 303] REVOCATION, SURRENDER AND REBATE. 359 SECTION 334. Procedure to obtain rebate — New York. 335. Right to rebate — mandamus — Now York. :!.'{(;. Right of assignee to rebate — receiver. 337. Right of licensee as affected by ads of employee — revocation — rebate. 338. Effect of surrender before violation. § 303. Right to revoke generally. Inasmuch as a license is in the nature of a mere permit, creates no vested or property rights, and the traffic is at all times subjeel to the control of the state in the exercise of the police power, it follows that the state may at any time revoke licenses whenever it deems it advisable for the public welfare. 1 " So long as the !• United States. — Cook Brewing Co. v. Garber, 168 Fed. 942 948. Connecticut. — La Croix v. County Commisioners, 49 Conn. 591. Indiana. — State v. Williams (Ind. S. C. 1910), 90 N. E. 754. Iowa. — McConkie v. Remley, 119 Iowa 512, 93 N. W. 505. Kansas. — Newman v. Lake, 70 Kans. 848, 79 Pac. G75, following State v. Durein, 70 Kans. 1, 78 Pac. 152. Maryland.— Fell v. State, 42 Md. 71, 20 Am. Rep. 83. Massachusetts. — Young v. Blais- dell, 138 Mass. 34 I. Minnesota. — Claussen v. City of Luverne, 103 Minn. 491, 115 N. W. 643. Nebraska.— Martin v. State, 23 Neb. 371, 36 X. \V. 554. New Hampshire. — State v. Holmes, 38 N. H. 225. Oregon. — State v. Horton, 21 Oreg. 83, 27 Pac. 165. Virginia. — Davis v. Commonwealth, 75 Va. 944. In this connection it is said in a case in Illinois: "If by authorizing a license or permit for one year, the state could deprive itself of the right to impose new restrictions upon the licensee during that period, a law au- thorizing licenses might bind succes- sive legislatures for three, five, or even ten years. If the legislative dis- cretion could be fettered or bargained away for one year, it could upon the same principle be bargained away for an indefinite period." Moore v. City of Indianapolis, 120 Ind. 4S3, 491, 22 X. E. 124. Per .Mitchell, J. Does not impair obligation of contracts.— An act which authorizes county commissioners t" revoke li- censes and gives them sole and final jurisdiction in the matter is not sub- ject to the objection that it impairs the obligation of contracts. La ("mix v. County Commissioners, 50 Conn. 321, 47 Am. lie;.. 648. Revocation of license not a tailing without due process of law.— Cassi.ly v. Mayor of City of Macon (Ga. S. C. 1909), GO S. E. '.Ml. Statute conferring power to revoke construed. — Where a ute provides that a license may be revoked by a certain body whenever 300 REVOCATION, SURRENDER AND REBATE. [§ 303 state law recognizes the right to make and vend intoxicating liq- ors, that occupation is under the protection of the law, but then it is at most mere license to carry on an occupation, which may be revoked at the arbitrary will of the legislature at any time. If the legislature chooses to outlaw the occupation, there is no right of property in the business in which the owner is protected by the Constitution and laws either of the state or of the United States." 2 The revocation of a license is not for punishment within the meaning of the constitution, but because by violations of the law the licensee has shown that he is not a proper person to hold it, and therefore such a revocation does not oust justices of the peace of their jurisdiction to try complaints for violating the law. 3 And the fact that holders of revoked licenses may have invested money in liquors or in fixtures needed in the business is held not to vary the application of the rule. 4 But under the statute in New York the relation which exists between the holder of a liquor tax certificate and the state is contractual and is subject, in disposition of rights thereunder to the establishment of a right to recover the rebate pursuant to the terms of the statute. 5 in its judgment such action may be stitutional as excessive penalty for necessary to peace and good order selling intoxicating liquors to a and the preceding section of the same minor. Krueger v. CoWille, 49 Wash, statute confers a discretion in the 295, 95 Pac. 81. granting of the license the two sec- 3. Cook Brewing Co. v. Garber, 168 tions should be read together and the p ec ] 0,42, 948. Per Jones, O. J., in provision as to revocation construed construing a state prohibitory law. as meaning that the judgment must 3# gtate y O'Connor, 58 Minn. 193, 4. Melton v. Moultree, 114 Ga. 462, 40 S. E. 302. be based on the existence of such gg N> w> gg9 relevant facts as show some cause and necessity for such action. Pehr- son v. Ephraim City, 14 Utah 147, 46 Pac Cn 5 * P e °pl e ex re ^" A. Hupfel's Sons Statute not providing exces- *■ Cullinan, 95 App. Div. (N. Y.) sive penalty.-The forfeiture of a 598, S8 N. Y. Supp. 1022. seven hundred and fifty dollar liquor As to forfeiture of liquor tax license, in addition to a fine and certificate.— See note, 32 N. Y. Rep. liability upon a bond is not uncon- Ann. Rev. Ed. 155. §304] REVOCATION, SURRENDER AND REBATE. :;i;i § 304. Power of municipality to revoke — as to rebate. It is within the power of the duly constituted authorities of a municipality having by law the power to granl licenses for the retail traffic and to regulate and prohibit the traffic to revoke such licenses at any time without refunding the money paid therefor or any part of the same. 6 And in such a case a statute authoriz- 6. Melton v. Moult reo, 114 Ga. 4C2, 40 S. E. 302; Ison v. Mayor of Griffin, 98 Ga. 023, 25 S. E. fill; Carbondale v. Wade, 106 111. App. C54 ; See Hagan v. Boonton, Town of, 62 N. J. L. 150, 40 Atl. 688, so hold- ing under provision of the charter. Where sole and exclusive au- thority is conferred upon a city council to regulate, license and pro- hibit the sale of intoxicating liquors, the action of the council in revoking the license without cause and refund- ing the unearned portion of the li- cense fee is conclusive and not sub- ject to review by the courts. State v. Superior Court, 50 Wash. C50, 97 Pac. 778. Under power to regulate the sale of liquor in the city and also the general welfare clause in the city charter it is decided that a city may provide that a conviction for violation of a state statute or of a city ordinance shall work an im- mediate revocation of the license. Sprayberry v. City of Atlanta, 87 Ga. 210, 13 S. E. 197. See also Eoboken v. Goodman, 68 N. J. L. 217, 51 Atl. 1092. But see City of Shreveport v. Draiss & Co., Ill La. 511, 35 So. 727. ■Where a town charter allows the regulation and sale of spiritu- ous liquors, an ordinance allowing the revocation of licenses upon the breach of certain conditions regulating the sale, the licensee agreeing thereto upon receiving his license, is valid. Paul v. Washington, 134 N. C. 303, 47 S. E. 793, 65 L. R. A. 902. Ordinance revoking is consti- tutional. — A municipal ordinance re- voking a liquor license is not uncon- stitutional and void in that it works a system of prohibition in the city by special enactment contrary to a general law known as a " local option law." McGehee v. State, 114 Ga. 833, 40 S. E. 1004. See Melton v. Moul- tree, 114 Ga. 4G2, 40 S. E. 302. But in Colorado it has been de- cided that an ordinance providing that upon a second conviction for a violation thereof the license and the money paid therefor shall remain for- feited absolutely though upon appeal and trial de novo he is subsequently acquitted of the offense has been held to be so unreasonable that it is void. Mclnerney v. Denver, 17 Colo. 302, 29 Pac. 51G. Forfeiture for sale to minors. — Under a statute providing thai a liquor license shall be forfeited, in ad- dition to other penalties provided for by law, in case the licensee sells liq- uors to ininois. a town council may, where it is given power to license and regulate the traffic, revoke a li- cense, without repayment of any por- tion of the unearned fee, upon con- viction of the licensee of soiling liquors to minors. Krueger v. Town of Colville, 49 Wash. 295, 95 Pac. 81. Rebates paid by city — curative act constitutional. — A subsequenl curative act providing that "in all 3<;2 REVOCATION, SURRENDER AND REBATE. [§ 3()4 ing the forfeiture and revocation of a license for violation of its terms is not to be construed as preventing the city from so revoking a license granted by it as the authority conferred upon the city to license, regulate and prohibit is to be construed as giving it power over the whole subject. 7 And inasmuch as one who accepts a license is chargeable with knowledge that it is liable to be revoked, he cannot, as when he has accepted one from a municipality which subsequently revokes it, maintain an action against the municipality for damages occasioned by the revocation. 8 Nor is a municipality liable in tort for mis- taken action of the city council in attempting to revoke a license to sell intoxicating liquors. The exemption of the state or of its subdivisions is based upon the sovereign character of the state and its agencies and upon the absence of obligation, and not on the ground that no remedy has been provided. 9 Again where a city council has been given jurisdiction over proceedings to revoke liquor licenses and has not in such a proceeding exceeded its jurisdiction, mandamus will not lie to review its decision, although the order may be erroneous. 10 But where a common council having no power to declare a license void from its incep- tion, makes such a declaration, it will not effect the validity of the license and will not be regarded as an attempt to exercise power conferred upon it to revoke a license valid at its inception but which by subsequent misconduct the council is authorized to recall. 11 cases where the officers of any city Jos. Schlitz Brew. Co. (Minn. 1909), in this state having a population of 121 N. W. 221. over fifty thousand inhabitants have 7. State v. Superior Court, 50 heretofore in good faith paid out Wash. 650, 97 Pac. 778. public moneys to any person whose li- s « fson v. Mayor of Griffin, 98 Ga. cense to soil intoxicating liquors in 623, 25 S. E. 611. such city has been revoked, or to his •*• Claussen v. City of Luverne, assigns, any portion of the fee paid 103 Minn. 491, 115 N. W. 643. for such license, such payments are 10. Mills v. State, 53 Neb. 305, 73 hereby in all respects validated and N. W. 678. legalized" is held not to be invalid 11. State v. Schroff, 123 Wis. 98, as special legislation. Calderwood v. 100 N. W. 1030. §§ 305,306,307] revocation, surrender and REBATE. 363 § 305. Where statute specifies causes. Where the statute specifies the causes for which a license may be revoked, it can only be revoked for the causes specified. 12 And in such a case a municipality has no power to revoke it, excepl for some one or more of such causes. 1,1 § 306. Effect of expiration of license. Proceedings to revoke a liquor tax certificate should not be dismissed on account of the fact that the time for which such certificate was issued expired before the order revoking and cancelling it was made. 14 But where mandamus is invoked to enforce the revocation of a liquor license and the license has then expired by limitation of time, compliance with the writ would be fruitless and nugatory, and it is not error to deny it. 15 § 307. Revocation by repeal of license law. A license to carry on the liquor traffic is revoked or annulled by the repeal of the law authorizing the granting of such license. 16 12. State v. Liehta, 130 Mo. App. 284, 109 S. W. 825 j Matter of Lyman, 27 Misc. R. (N. Y.) 327, 57 N. Y. Supp. 888. 13« Decker v. Board of Excise, 57 N. J. L. G03, 31 Atl. 235; Lautz v. ffightstorm, 46 N. J. L. 102. i >• Matter of Lyman, 4S App. Div. (N. Y.) 275, 62 X. Y. Supp. 846; Matter of Schuyler, 32 Misc. R. IN". Y.) 221, 66 X. Y. Supp. 251. 15. State v. Eammel, 134 Wis. 61, 114 X. W. 97. «<:• Arie v. State (Okla. 1909), 100 Pac. 23. In Arkansas. — An order of the county court prohibiting the sale of liquor within three miles of a sehool- house or church named in the petition has the effeel of revoking the an- nual license of a dramshop keeper granted in the same year and thus making the sale of liquor under such license a violation of law. Viefhaus v. State. 71 Ark. 410. 75 S. W. 585, holding that an exception in the stat- ute that it should not "affect per- sons who may already have obtained a license to sell spirituous liquors in any Ideality wherein this aci shall be put in force until such licensi expire" only protected those to whom a license had been issued prior to the passage of the act. And where an order of the county court revoking an order prohibiting the Bale of Iiqnor was reversed upon appeal to the circuit court, the effect of the reversion was to set aside li- censes i" sell liquor which had in the meantime been granted by the county Court. Bordwell v. State. 77 Ark. 161, 91 S. W. 555. Rut where power i- vested in a 3G4 REVOCATION, SURRENDER AND REBATE. [§§ 308,309 In Oklahoma it has been decided that a liquor license, the period for -which it was issued not having expired when the state was admitted into the Union was revoked and discontinued on the admission of said state by reason of the prohibition article in the Constitution of the state which became then and there effective. 17 § 308. Where license contains provisions as to forfeiture. Where a license provides that the conviction of the licensee for certain offenses will work its immediate revocation if he pleads guilty to an indictment charging one of such offense and pays the fine imposed by the court, his notice of the revocation is held to be ample, and he cannot insist on a proceeding before a judicial tribunal. 18 And where a city has granted a license to sell liquors conditioned that in the case of the enactment of a law increasing the amount of license fee, the licensee shall pay in addition the increased rate from the date of increase to the end of his license period, the city has the power to revoke his license for failure to comply therewith. 19 § 309. Grounds of revocation generally. As we have stated, where the statute specifies the causes for which a license may be revoked it can only be revoked for one or more of such causes. 20 Among some of the causes for revocation is a failure to keep the certificate displayed in the room or bar county court upon the petition of a and render effective a license after- certain number of " adult residents wards granted to sell liquor within and voters " to put in force an act the prohibited limits. Wilson v. prohibiting the sale of liquors within State, 35 Ark. 414. .i certain distance of an academy, and 17. Arie v. State (Okla. 1909), no power is delegated to such court 100 Pac. 23. to subsequently revoke or modify an is. Sprayberry v. Atlanta, 87 Ga. order so made, if the court acts upon 120, 13 S. E. 197. a proper petition and issues such an 19. Seattle v. Clark, 28 Wash. 717, order, its power is exhausted and it 69 Pac. 407. cannot subsequently revoke the order 20 « See § 305 herein. § 309] REVOCATION, SURRENDER AND REBATE. ;;,,;, where the liquor traffic ia carried on, 21 or a conviction for per- mitting gambling upon the premises. 22 So in New York, gambling upon the premises has been held a ground under the statute for revoking a certificate though the holder of the cer- tificate was not present at the time it was done.-- Also conduct- ing the place in a disorderly manner is a ground in Pennsyl- vania, 24 as is the permitting place to be frequented by disreputable persons, 25 and the right to traffic is confined as a general to the place specified in the license or application. So conducting busi- ness of brewery at place other than that designated in a license is a ground for revocation. 20 And where five certificates were issued to a person to traffic in liquor in five different places upon a picnic ground and after the surrender of four of them he con- tinued to traffic in liquors in the buildings for which the sur- rendered certificates were issued, it was held that though the law was not violated at the place for which he retained the cer- tificate the cancellation of the entire five was justified. 27 But a building used by a voluntary, unincorporated religious associa- tion, which has other regular headquarters, and which was erected and used to prevent the granting of the certificate, is not to be deemed a building used " exclusively " for religious purposes, in a proceeding to cancel it. 28 21. Matter of Mitchell, 41 App. cation. State v. Apfel, 124 La. , Div. (N. Y.) 271, 58 X. Y. Supp. 50 So. 613. 632. 2.-?. Matter of Cullinan, ss App. 2ii. Ballentine v. State, 48 Ark. 45, Div. (X. Y.) 6, 84 X. V. Supp. 492. 2 S. YV. 340. 24. Commonwealth v. Elliott, 4 Pa. Where the law forbids a sale Dist. R. 89. to minors it is sufficient in a com- 2.1. Commonwealth v. Simmons, 4 plaint in proceedings to revoke a li- Ta. Dist. R. 35. cense for such a Bale to allege a sale 2G. Commonwealth v. Kohnle Brew, to a minor without also stating that Co.. 1 Pa. Super, (t. t!27. such sale was contrary to law. 27. Mailer of Lyman. 59 App. Div. Davis v. Repp. (X. J. S. C. 1010), (X. Y.) 217. 69 X. Y. Supp. 300. 75 Atl. 169. 28- Matter of Vail. 38 Misc. R. Permitting a minor to gamble (X. Y.) 302. 77 X. V. Supp. 903. upon the premises a ground for revo- 366 REVOCATION, SURRENDER AND REBATE. [§§ 310,311 § 310. Unlawful sales. An ordinary ground of revocation is a sale which the licensee is prohibited by law from making, 29 such as a sale of a quantity which his license does not authorize him to make, 30 or to persons of known intemperate habits, 31 or to minors. 32 Under a statute pro- hibiting a licensee to sell or give away intoxicating liquors to minors without the written authority of parent or guardian, and providing that for such violation the license shall be subject to revocation the licensee's intent respecting alleged violations of the statute is not an essential factor in the offense. 33 It is not a suffi- cient excuse or justification that the sale was made to them in good faith after being informed and under the belief that they were of full age. 34 § 311. False statements in application. Another ground for the revocation of a license in some states is a material false statement in the application for the license. So in New York in determining the particular traffic to be carried on the application and liquor tax certificate are to be construed together, and the certificate may be revoked where there are material false statements in the application. 35 So a certificate may be revoked where there is in the application a false statement that the necessary number of consents have been obtained. 36 In 29. State v. Schmidtz, 65 Iowa 556, Wausau, 137 Wis. 311, 118 N. W. 22 N. W. 673; Stegmaier Brewing 810. Co.'s License, 11 Pa. Dist. R. 691; 34. Jn re Carlson's License, 127 Tierney's License, 11 Pa. Co. Ct. R. Pa. St. 330, 18 Atl. 8. 406. 35. Matter of Ryon, 85 App. Div. SO. Meenan's License, 11 Pa. Super. (N. Y.) 621, 83 N. Y. Supp. 123. Ct. 579. 36. Matter of Rasquin, 37 Misc. R. 81. Carey's License, 11 Pa. Co. Ct. (N. Y.) 603, 76 N. Y. Supp. 404. R. 4f,,s. Evidence not supporting al- ?.2. People v. Woodman, 15 Daly legation of not signing con- (N. Y.) 136, 3 N. Y. Supp. 926; sent. — Where one alleges as a ground Tierney's License, 11 Pa. Co. Ct. R. for cancelling a certificate that he did 406. not sign the consent which purports 33. State ex rel. Coulin v. City of to bear his signature and the clear § 311] REVOCATION, SURRENDER AND REBATE. 357 Pennsylvania it is decided that an application to revoke a retail liquor license on the ground of the falsen< ss of <•< rtain statements made in the certificate accompanying the application, is in the nature of an application to open a final order, judgment or decree regular on its face and after due hearing, and the mak< rs of such an application must show that the facts they set up were not known to, or could not have been ascertained by, them prior to the granting and issuing of the license. Such a proceeding is entirely different from that provided by statute for the revocation of a license upon the ground that the licensee has violated the law relating to the sale of liquor. :i7 The truthfulness of the statement in an application must upon proceedings to revoke the certificate be judged by the court as of the time when the application was made. 38 But it has been declared that declara- tions made in the application should not be strictly construed against the applicant where there was an evident intention on his part to comply with the spirit of the law. 39 And the false state- ment which will justify a revocation under the statute in ISTew York must relate to some material matter of fact and it must be shown that such fact was wilfully withheld by the applicant. 40 preponderance of evidence shows that Compare Lyman v. Murphy, 3.3 he did in fact sign it t he proceeding Misc. R. (X. Y.) 349, 68 N. V. Supp. should be dismissed. Matter of Whit- 490, holding that where an applicant taker, 63 App. Div. (N. Y.) 442, 71 for a liquor tax certificate failed to N. Y. Supp. 407. procure the requisite number of con- 37. Schmitt's License, 37 Pa. Super. sents within the required distance, the Ct. 420. facts that he in good faith believed 38. Matter of Barnard, 48 App. that he had procured a sufBcienl mini- Div. (X. V.) 423, 63 N. Y. Supp. ber, that he had employed a competent 255. agent to secure them and that those 3D. Matter of Purdy. 40 App. Div. which were lacking had since been (X. Y.) 133, ~>7 X. V. Supp. t\2'.): supplied, were held no! to prevent the compare Lyman v. Murphy. '■'>'■'. Misc. revocation of the certificate, it being R. (X. Y.) C49, 68 X. Y. Supp. declared that the good faith of the ap- 190. plicanl was nol involved in these pro- 40. Matter of Kessler, 1'!.'! X. Y. ceedings under the statute. 205, 57 X. E. 40-2. r< o'g I 1 App. Div. 'When in a proceeding taken 635, 60 X. Y. Supp. 1141. after the voluntary surrender of 3G8 REVOCATION, SURRENDER AND REBATE. [§ 312 So in Xew York it has been decided that a liquor tax certificate cannot lawfully be revoked because a person applying for it for premises which were occupied exclusively as a hotel on March 28, 1896, innocently and in good faith made in his application the misstatement that the premises had since been continuously occupied as a hotel. 41 And a misstatement which relates to some matter of law, as to which the applicant is ignorant or misin- formed, will not be sufficient to warrant the court in cancelling a certificate. 42 § 312. Statement as to continuous occupation — suspension by fire or accident. A statute providing for an exemption from consents where a place has been continuously occupied for the traffic since the taking effect of the act does not require that the traffic shall be continuous under any and all circumstances. Therefore a license will not be revoked on the ground that a statement in the applica- tion that it has been so occupied was false, where it appears that there had been a mere temporary suspension as the result of a fire. 43 So under an ordinance providing that where a building a liquor tax certificate in New York, its revocation is sought for the sole purpose of forfeiting the rebate al- lowed for the unexpired term upon a charge, which is not sustained, that the holder had made a material false statement in his application therefor, the specifications of its alleged falsity fall with the charge and cannot be used for the purpose of implying and defining some reason, permissible to be implied by the phrase " any other reason " used in the statute, which will sustain a conviction of not being entitled to hold the cer- tificate. Matter of Lyman, 1G3 N. Y. 536, r,7 N. E. 745. 41. Matter of Brewster, 39 Misc. R. (N. Y.) 689, 80 N. Y. Supp. 666. 42. Matter of Kessler, 163 N. Y. 205, 57 N. E. 402, rev'g 44 App. Div. 635, 60 N. Y. Supp. 1141. 43. Matter of Kessler, 163 N. Y. 205, 57 N. T. 402, rev'g 44 App. Div. 635, 60 N. Y. Supp. 1141. The court said: "The plain purpose of the law was, that when the business in such places has once been abandoned, it should not be resumed except with the consent of the residents, as pointed out in the statute. A temporary sus- pension of the traffic, resulting from an accident such as the destruction of the building by fire, or the like, will not operate to affect the right at- tached to the premises under the law." Per O'Brien, J. § 313] REVOCATION, SIKKKNDLK AND REBATE. ;;i;:t has been constantly occupied as a barroom and has not changed its identity since the time it was so occupied, it shall not be neces- sary to obtain a permit from the city council in accordance with the existing laws and ordinances a building which has been used for many years as a barroom does not lose its identity within the meaning of such ordinance by the reason of it being temporarily uninhabitable by reason of a fire, and the action of the city council in revoking the license on that ground is arbitrary and illegal. 44 But it has been held that a hotel has not been continuously oc- cupied since a certain date where it appears that subsequent to that date a considerable portion of it has at various times been rented to tenants and used for other purposes. 45 § 313. Violation of law — conviction for. Where a liquor tax certificate can be forfeited for a violation of the law by the holder only upon conviction for such offense and where there has been no such conviction a proceeding to revoke cannot be maintained. 46 Cognizance may be taken by commissioners of an application to revoke a licence on the ground of a violation of the law by the licensee while a criminal prosecu- tion is pending against him for the same violation. 47 And it has been decided that the discharge of a certificate holder in criminal proceedings instituted for the same violation for which a citizen seeks to procure a cancellation of the certificate does not bar the latter proceeding. 48 The word " conviction " as 44. Graziano v. City of New therefor and if the defendant Beta up Orleans. 121 La. 440, 46 So. 566. any matter of excuse he baa the bur- in. Matter of Brewster, 3!) Misc. R. dent to establish it. Davis v. Repp. (N. Y.) 689, 80 N. Y. Supp. 666. (N. J. S. C. 1010). 75 Atl. 169. 46. Matter of Lyman, 44 App. Div. 47. La Croix v. County Commis- (N. Y.) 507, citing Matter of Lyman, siners. 50 Conn. 321, 47 Am. Dec. 160 N. Y. 96, 54 N. E. 577. See note, 648. 32 N. Y. Ann. Rev. Ed. 1051. * s - Matter of Schuyler, 32 Misc. The burden of proof is on the R. (N. Y.) 2-2\. 66 X. V. Supp. 251. one seeking to revoke a license to Compare opinion in Matter of Lyman, show a violation which is a ground 160 N. Y. 96, 102, 54 N. Y. E. 577. 370 REVOCATION, SURRENDER AND REBATE. [5 313 used in a statute authorizing a revocation of a license in case of a conviction for a violation of the law means a final judgment establishing guilt. 49 A person has been " convicted of a felony " within the meaning of the New York Liquor Tax Law where he has pleaded guilty to receiving stolen goods, though sentence has been suspended, and in such a case the certificate is void ab initio and a mesne assignee is not entitled to surrender it and obtain a rebate though no steps have been taken to cancel it or to recover the statutory penalties and though more than thirty days have elapsed since the certificate was surrendered. 50 Where a munic- ipal ordinance providing for the licensing of saloons provides that two convictions of the license holder for violation of the ordinance or of" the state law," or one conviction of violation of the ordinance and one of " the state law " shall be ground for a revocation of the license, the state law referred to is the state law or laws governing the business of selling liquors, and a con- viction for violating a state law other than the law relating to the business of liquor selling cannot be made the ground of revoca- tion under the ordinance. 51 49. Commonwealth v. Kiley, 150 Mass. 325, 23 N. E. 55. Though a sentence imposed after a plea of nolo contendere amounts to a conviction in the case in which the plea is entered a court record containing such a plea and showing a conviction thereon is not admissible in another proceeding, such as the abatement of a liquor nuisance, to show that the defendant was guilty. White v. Creamer, 175 Mass. 507, 56 N. E. 832. A judgment by the licensing board that the licensee has violated the law has been held sufficient in a recent case in New Jersey where a proceeding had been brought to re- voke a license it being declared that a conviction before a court of law was not necessary. Sawicki v. Keron (N. J. S. C. 1910), 75 Atl. 477. 50. People ex rel. Lawton v. Ly- man, 33 Misc. R. (N. Y.) 243, 68 N. V. Sup]». 331. 51. Cox v. Common Council of Jackson, 152 Mich. 630, 116 N. W. 456. The court said that "any other meaning would make the pro- visions of the ordinance insensible. The ordinance does not say ' a state law.' The words employed in various places in the ordinance are 'the State law,' and in one portion of the ordi- nance which has been set out, and in the same connection, express reference is made to the liquor law." Per Ostrander, J. 68 314 315,316] REVOCATION, SURRENDER AND REBATE. ;;7i § 314. License to partners. Where ;i liquor tax certificate is issued to a partnership, the violation of the statute essential to a forfeiture of the right to a rebate under the New York Liquor Tax Law may be by one of the partners alone as such a violation is in legal effect a violation by the partnership. 52 And where a dram shop keeper is convicted by a jury of violating his license, whether he is keeping for him- self alone or in co-partnership with another, the license should be declared forfeited whether it was issued in his name or an- other's. 53 § 315. License to club organized to evade law. A license or liquor tax certificate issued to a club may be revoked where it appears that the club was not organized and did not conduct its business in good faith so as to bring it within the provisions of the law relating to clubs but was rather organ- ized for the purpose of evading the law. 54 § 316. Licenses to hotels. In some states statutes have been passed which are especially applicable to hotels and which contain provisions as to certain requirements such as the number and size of rooms therein, compliance with which is essential to the obtaining of a license to sell liquors in connection with such business. And where the licensee has not complied with such requirements or falsely .-,-. People v. Lyman, 156 X. Y. upon which the order was granted 407, 50 N. E. 111-. upon the person in charge <>f the Service on person in charge of premises at the time the service is premises.— Where a liquor tax cer- made. Matter of Cullinan, 68 tificate is issued to a firm it is held Div. (X. V.) 119, 71 X. V. Supp. sufficient to give the court jurisdic- 182. t ion of proceedings to cancel the cer- 63. Ballentine v. State, -JS Ark. 45, tificate againsl the members of such '2 S. W. •'!!<>. firm to serve the order to show cause •"• »■ Matter of Lyman, 28 App. Div. why it should not he cancelled to- (X. Y. ) 200, 50 X. Y. Supp. 808. gether with the petition and affidavit 372 REVOCATION, SURRENDER AND REBATE. [§ 316 represents in his application that he has, it is a ground for re- voking his license. So it is decided in New York that where it appears that the bedrooms did not comply with the requirements of the Liquor Tax Law at the time of the granting of the certificate for a hotel such certificate should be revoked. 55 But the fact that there were not the specified number of rooms in a building at the time an application for a liquor tax certificate was filed for premises described as a hotel is held not to be a sufficient ground for revoking the certificate where it appears that there was the necessary space for the required rooms and that at such time the rooms were being prepared and were in fact completed and fur- nished in accordance with the statutory requirements shortly after the certificate was granted. 56 Where a sale of liquor on Sunday is alleged as the ground for revoking a liquor tax cer- tificate the holder thereof must, if he relies on the exception in favor of hotel keepers, plead and prove the facts bringing him within the exception. 57 In proceedings under the New Jersey 55. Matter of Ryon, 39 Misc. R. (N. Y.) 098, 80 N. Y. Supp. 1114. New York Law of 1905 con- stitutional.— Chapter G97 of the laws of 1905 providing for the re- vocation of any hotel liquor tax cer- tificate which has been issued for a place which " does not comply with the provisions of the liquor tax law as to hotels " is not unconstitutional for failure to provide for notice of all proceedings thereunder to holders of liquor tax certificates issued be- fore its enactment, and is not a de- privation of property without due process of law. People ex rel. Laughran v. Flynn, 48 Misc. R. (N. v. L59, 90 N. Y. Supp. 053. 56. Matter of Purdy, 40 App. Div. (X. Y.) 133, 57 N. Y. Supp. 029. 57. Matter of Schuyler, 63 App. Div. (X. Y.) 200, 71 N. V. Supp. 437. What is a hotel within mean- ing of law.— A place kept for enter- taining strangers or travelers and which receives all who come to it without any previous agreement as to length of stay or terms of entertain- ment is a " hotel " within the Liquor Tax Law. And to be a hotel it need not keep a safe for valuables or have a register for guests or provide stable accommodations. And the display of a sign " Boarding house " is not con- trolling as to its character. Matter of Brewster, 39 Misc. R. (N. Y.) 689, 80 N. Y. Supp. 000. A person does not become a " guest " within the meaning of the Liquor Tax Law by the mere service to him of a sandwich, where the ser- vice of sandwiches is a mere pretext to evade the law. Matter of Schuy- ler, 03 App. Div. (N. Y.) 200, 71 N. Y. Supp. 437. The question as to who is a § 3101 REVOCATION, SURRENDER AND REBATE. 373 statute for the forfeiture of a license of an inn and tavern for non-compliance with the provision that " if the license be not in guest is also considered in a case in the District of Columbia. In this ease it appeared that two members of the police forca of the District of Columbia, dressed in citizen's clothes' entered the cafe of the Norraandie Hotel in the city of Washington on the date named in the information, and seated themselves at a table. They were the only patrons in the room at the time. They called a waiter and ordered two bottles of beer. The waiter called the head waiter, who informed them that the manager had directed them not to serve liquors on Sunday to any per- sons excepting bona fide guests of the hotel at their meals or in their rooms. The further conversation that occurred at this time is not disclosed by the record, but it appears that the head waiter brought the hotel register down from the office and the two policemen registered. They then ordered a cheese sandwich and a bot- tle of beer each. They were served. The policemen ate the sandwiches and drank the beer, after which they each ordered a highball, which was served by the same waiter. After drinking the highballs they paid their bills and left the hotel. Subsequently, the de- fendant was arrested, and the above information was filed against him. The court after stating the facts as above said as follows : "This prosecution is instituted un- der the act of Congress of March 15, 1803, forbidding the sale of intoxi- cating liquor on Sunday. The act contains the following proviso: -'Pro- vided that the keeper of any hotel or tavern having a license under this act may sell intoxicating liquors to bona fide registered guests in his hotel or tavern at the meals or in the rooms of such guests." The only question in this case is whether the sale of the liquor to the two police- men, as above outlined, constituted a bona fide sale to registered guests of the hotel. We are of the opinion that the mere bring of the register from the hotel office down into the cafe, and the signing of the same by the wit- nesses, was not sufficient to make them bona fide registered guests of the hotel. This is not a new device conceived by hotel keepers for evad- ing the enforcement of liquor laws. It has frequently been adopted by hotel keepers and others, and has been generally discountenanced by the courts. The courts frown upon any trick, artifice, or subterfuge de- vised for the evasion of the provisions of a criminal statute. Especially is this true in relation to statutes reg- ulating the manufacture and sale of intoxicating liquors. The whole sub- ject of the manufacture and sale of intoxicating liquors in this country has become one of police regulation. It is only permitted under license and within close restrictive limita- tions, and a statute defining such re- strictions should he so construed as to keep the licensee strictly within its provisions. An enlightened pub- lic sentiment no longer regards it as a natural and inherent right in the citizen either to manufacture, sell. or use intoxicating liquor. The power to place a. limitation upon the -ile and manufacture of intoxicating liquor implies the power to place a limitation upon its use. The whole question is one for police supervision, and the legislation on the subject is for tin- protection of society, and, as such, embraces within its limitations 374 REVOCATION, SURRENDER AND REBATE. [§ 316 an inn and tavern, or a hotel having at least ten spare rooms and beds for the accommodation of boarders, transients and not only the manufacture and sale, but the use of intoxicating liquors. » * * * * * In a leading case in Massachusetts, the court said: "It is not worth while to consider whether a person who resorts to an inn for the purpose of drinking becomes thereby a guest within any meaning of the word. As used in the statute, the word is de- fined by the statute itself and lim- ited to persons who resort to the house for food and lodging, and clearly excludes those who resort there for the purpose of procuring and drinking intoxicating liquor." Commonwealth v. Hagan, 140 Mass. 289 ; Commonwelath v. Moore, 145 Mass. 244. This, we think, is the proper test to be applied in the en- forcement of the statute here under consideration. Did these two police- men resort to the hotel for the pur- pose of securing food or lodging and thereby become bona fide guests of the hotel? If they did, then the service of the intoxicating liquors was a mere incident to the general purpose for which they resorted to the hotel. On the other hand, if they went to the hotel for the purpose of securing intoxicating liquors, then the registering and service of a sand- wich became mere incidents to their general purpose in going there. We think it clearly appears from the evi- dence in this case that their purpose in going to the hotel was to secure intoxicating liquors, and not to be- come bona fide guests thereof. And, we arc further convinced that the plaint iff in error so regarded the ob- ject of their visit, and in serving them, attempted by a mere pretext to escape the plain restrictions of the law. This is in full accord with the former holdings of this court. In Lehman v. District of Columbia, 19 App. D. C. 217, 231; 30 Wash. Law Rep., 87, the court said: " It is very clear from the testimony that the persons to whom such beer was being served were not registered guests of the hotel, at least, were not bona fide registered guests. If such they were, it was incumbent on the defendant to show the fact, which he might very readily have done, if he desired to bring himself within the exceptions of the proviso, which allows the sale of intoxicating liquors by keepers of hotels on Sunday to the registered guests of their houses. ... It was in evidence that there was a very large number of persons on the prem- ises who were supplied with liquor from the barroom of the defendant, and that some of these also were supplied with sandwiches. The claim of the defendant was that he supplied liquor to none but bona fide registered guests. The question, therefore, was distinctly raised as to what consti- tuted a bona fide registered guest, to whom intoxicating liquor could be lawfully sold on Sunday; and the trial court did not err in holding that there must be actual bona fides or good faith in the transaction." The question of whether or not the two policemen in this case were bona fide guests at the hotel is one of fact, which, had the case been tried before a jury, would have been submitted to the jury for determination. It was incumbent upon the plaintiff in er- ror to show that these persons were such guests. The court below found from the evidence that plaintiff in error had failed to discharge this burden. We think the court prop- § 317] REVOCATION, SURRENDER AND REBATE. 375 travelers," the interior shall be exposed to view from the street at all times when the sale of liquor is prohibited by law, the com- plaint must set forth that the inn and tavern whose license is sought to be forfeited did not have such accommodations for guests as to bring it within the class exempted by the statute. 68 § 317. Petition for revocation. Tho petition should allege the granting or issuance of a license. 59 And to confer jurisdiction the petition for revocation must comply with the statute and where the statute requires that the petition shall state the facts upon which the application is based a petition in which all the mat* rial facts are stated upon information and belief without disclosing the sources of the in- formation or the grounds of the belief is not a sufficient basis for judicial action. 60 And the provision that the petition shall state the facts upon which the application is based, implies that no charges are to be considered upon the bearing except such as are erly interpreted the evidence and we find no reason to disturb its conclu- sion." Per Mr. Justice Van Orsdel, in Cake v. District of Columbia, 37 Wash. Law Rep. 354. 58. Cuirczak v. Keron (Xf. J. L. 1908), 7i) Atl. 366. 59. Quisl v. American Bonding Trust Co., 74 Neb. 692, 105 X. W. •_'.v>. <:<►• Matter of Peck v. Cargill, 1(17 N. V. 391, tin X. E. 775, 53 L. R. A. 888, rev'g .".7 App. Div. 635, 68 X. Y. Supp. 1145, and holding also that the provision of the statute as to an order by default on failure to tile a verified answer does not dispense with the necessary allegations and proof of the fads constituting the offense. Petition accompanied by affi- davits. — ruder the New York Tax; Taw providing thai the farts upon which an application to revoke a tax certificate shall be stated in the petition it is held sufficient in other cases if the petition is made upon information and belief and is accom- panied by affidavits which are made a part of such petition and which state in detail the facts upon which the petition is based. Matter of Cullinan, 70 App. Div. (X. Y.) 3G2, 7s X. Y. Supp. 466; Matter of Culli- nan, 40 Misc. R. (X. Y.) 423, 82 X. Y. Supp. :537. The affidavit verifying the complaint in a proceeding to revoke a license should it has been decided under a New Jersey statute, set out ular \ Lolal ions of the law upon which the complaint is based ami should attest the proof thereof. Voighi v. Board of Excise, Com'rs of City of Newark, 59 X. J. L. 358, 36 Atl. 686. :i7 L. K. A. 292. 376 REVOCATION, SURRENDER AND REBATE. [§§ 318,319 contained in the petition as originally framed or such as may properly be introduced by amendment in the course of the pro- ceeding. 61 § 318. Answer. "While the holder of a liquor tax certificate is not required to file a verified answer in proceedings to revoke it, upon the ground that it may tend to incriminate him, yet it is held that this reason does not apply to a party other than the holder asking to intervene, and he should be required to answer. 62 But there is a waiver by a holder of a liquor tax certificate of his constitutional right to refuse to answer under oath in proceedings to cancel such cer- tificate where he interposes a verified answer. 63 Where the an- swer of a proposed transferee of a liquor tax certificate fails to deny the excise commissioner's allegation that the building did not comply with the statute, there is no material issue before the court and it will, without a reference and upon proof of mere formal matters, revoke the certificate. 64 § 319. Parties. Any citizen though not a taxpayer, may under the New York Law of 1896, petition for the revocation of a liquor tax certificate where he claims that the holder was not originally entitled to it, and the fact that the holder has never been convicted of a viola- tion of the statute is not material and affords him no defense. 65 61. Matter of Plass, 71 App. Div. of reversing an order appealed from. (N. Y.) 488, 76 N. Y. Supp. 2, hold- 62. Matter of Jennings, 130 App. ing that in order to render available Div. (N. Y.) 645, 115 N. Y. Supp. evidence of violations of the Liquor 457 Tax Law not alleged in the petition ft3 Matter Qf Cul]inarij 76 App . the proper course is to move at Spec- _ __ __ . ' . .. .... ' Div. N. Y.) 362, 78 N. Y. Supp 466. lal Term to amend the petition so as * l to conform to the proof as the Appel- 64, Matter of Cullinan, 39 Misc. late Division can not amend the peti- R (N. T.) 646, 80 N. Y. Supp. 626. tion, or deem it amended, so as to 65. Matter of Halhran, 30 Misc. R. conform to the proof for the purpose (N. Y.) 515, 63 N. Y. Supp. 1024. § 320] REVOCATION, SURRENDER AND REBATE. 377 Arid where by statute the authority to present a petition asking for the revocation of a license is given to certain officials and to a taxpayer of the county where the license is issued, the petition must contain an allegation that the petitioner is either one of the officials designated or such a taxpayer. 86 Where a citizen seeks a revocation of a liquor tax certificate, the proceeding must be brought against the person who is at the time the hold< r thereof and where it is wrongly brought against the original holder, there is no authority for bringing in his assignee and the proceeding should be dismissed. 07 The assignee of a liquor tax certificate is not entitled to be made a party to a proceeding to cancel a liquor tax certificate. 08 And a pledgee is not entitled to be served with a petition and order to show cause why the certificate should not bo revoked as he is not a " holder of the certificate " within the meaning of the statute. 69 § 320. Who may intervene. The assignee of a liquor tax certificate may be allowed by the court to intervene in proceedings for its revocation. 70 And although the Liquor Tax Law in New York only requires the holder of a certificate to be made a party to a proceeding to revoke it for violation of the statute, lessees of the premises and those owning fixtures therein, on showing that the premises are only suitable for saloon purposes, should be permitted to inter- vene and defend for an adjudication revoking the certificate will prevent the use of the premises for traffic in liquor for one year to the injury of their property rights. And it is decided that such intervening parties should be allowed to participate in the 6C. Smaw People ex rel. v. Mc- R. (N. Y.) 514, lis X. V. Su|>]>. G13. (Jowan, 44 App. Div. (N. Y.) 30, GO *'>■>• Matter of Lyman, -jr. Misc. R. N. Y. Supp. 107. (N. Y.) 300, 56 X. V. Supp. 1020. cr. Nieland v. McGrath, 20 Misc. 70. Matter of Cullman, 94 App. R. (N. Y.) 682, 62 N. Y. Supp. 760. Div. (N. Y.) 445, 88 N. Y. Supp. 164. 6S. Clement v. Viscosi, 63 Misc. 378 REVOCATION, SURRENDER AND REBATE. [§ 321 hearing, to present any material evidence and to contest the proceedings in all stages for the protection of their property rights, including the right of appeal. 71 Parties intervening at their own request in the proceedings to revoke a liquor tax certif- icate in New York are bound by the statutory procedure and are not entitled to a jury trial. 72 • § 321. Procedure to revoke. In determining the rights of the parties and mode of pro- cedure in proceedings to revoke a license recourse should be had to the statute of the particular state in which the proceeding takes place. 73 Where the law prescribes the mode of procedure for the revocation of a license, it is essential to the validity of the proceedings that such mode be followed. So where a municipality has prescribed by ordinance how a license may be revoked so long as the ordinance is in effect, it is necessary to proceed in the manner prescribed by it. 74 And the witnesses should be sworn 71. Matter of Jennings, 130 App. Div. (N. Y.) 645, 115 N. Y. Supp. 457. 72. Matter of Jennings, 130 App. Div. (N. Y.) 645, 115 N. Y. Supp. 457. Mode of obtaining jurisdic- tion. — .Jurisdiction of the parties to and the subject matter of a proceed- ing to revoke a liquor tax certificate Tinder the New York Liquor Tax Law L. 1896, eh. 112, § 28, subd. 2, is obtained upon service of the petition and order to show cause though the petition be on information and belief. Matter of Cullinan, 39 Misc. R. (N. Y.) 354, 79 N. Y. Supp. 840. When court may order dis- continuance. — The supreine court may for a sufficient cause order a dis- continuance of a proceeding taken to ke a liquor tax certificate where the application is made by the party who instituted the proceeding but it cannot order a discontinuance on the application of the holder of the certi- ficate, where the commissioner of ex- cise opposes it. Matter of Cullinan, 39 Misc. R. (N. Y.) 558, 79 N. Y. Supp. 582. Effect of denial of application on subsequent application.— A de- nial of an application by one citizen for the revocation of a tax certificate is not a bar to a subsequent applica- tion by another citizen to revoke a later certificate covering the same premises. Matter of McCusker, 47 App. Div. (N. Y.) Ill, 62 N. Y. Supp. 201. An extension of the return day of the original order to show cause why a tax certificate should not be revoked does not as against the assignee of the certificate have the effect cf depriving the court of juris- diction. Mailer of Lyman, 53 App. Div. 330, 65 N. Y. Supp. 673. § 322] REVOCATION, SURRENDER AND REBATE. 379 where the statute provides for the hearing of witnesses on pro- ceedings to revoke, the board having the power to revoke ordi- narily having the power to administer oath § 322. Necessity of notice of proceeding. In many slates it is provided by statute that notice shall be given to the license of an application to revoke his license and where it is so provided it is essential that the required notice be given. 70 And under a statute providing that where it is sought to revoke a license there shall he a " hearing in the ease," notice to the licensee is provided for hy implication. 77 Where a license is in form a proper license to a partnership and will protect both partners, it is unnecessary to give notice of a hearing to revoke it to more than one member of the firm, as it is a license to a firm Where the rule to show cause why a license should not be revoked is based on an ex parte affidavit al- leging that the licensee had violated the law, fairness and good practice require that the act alleged to be a violation of law be specified with reasonable certainty. Meenan's Li- cense, 11 Pa. Super. Ct. 579. A stipulation by the parties to a proceeding to revoke a tax certifi- cate aa to tlic use of the premises for the sale of liquors for a certain length of time may operate to bring the premises used for saloon purposes within tlie statutory exemption pro- vided in the New York statute. Mat- ter of McCusker, 23 Misc. K. (X. Y.) 446, .".1 \. Y. Bupp. 281. The absence of a licensee's at- torney from such proceedings is not a reason for postponing the investi- gation ami a refusal to postpone dues nut deprive the licensee of " a ■ enable opportunity t" be heard." State v. Northfield, 41 Minn. 211, 42 X. W. 1058. 74. Carbondale v. Wade, 10G 111. App. (154. 75. License Commissioners v. O'Conner, 17 R. I, 40, 19 Atl. 1080. See People v. Wright, 3 Hun (X. Y.) 306. 70. Kentucky. — Plummer v. Com- monwealth, 1 Bush 2U. New Jersey. — Lambert v. Rahway, 58 X. J. L. 57S. 34 Atl. 5. New York. — People ex rel. Friel v. Commissioners of Exercise <>f City of Poughkeepsie, 2 App. Div. 89, :!7 X. Y. Supp. 485. Rhodi Tslan '. Deignan v. License Commissioners, 16 R. I. 727. 19 Atl 332. Virginia. — Lillienfeld's Case, 92 Va. SIS. 23 K. E. 882. Wisconsin. — State v. Bradish, 95 Wis. 20.-,. 207, To X. W. 172. :i7 I.. II. I ; Common Council v. State, 59 Wis. ' 55, 18 \'. W. 324 : Gaertn ■•• I du I."-. 34 Wis. 4t>7. 77. Young v. Blaisdell, 138 Mass. 3-14. 380 REVOCATION, SURRENDER AND REBATE. [§ 323 as a single party, and notice to either member is notice to the firm. 7S But a licensee who appeared by an attorney at the place and time designated, and made an application for and obtained an adjournment on the licensee's inability to be present, thereby removed the objection of want of proper notice. 79 § 323. Proceeding's — appointment of referee. The power of the court in New York in proceedings to revoke a tax certificate to appoint a referee to take testimony and to re- port the proof to the court, is held to be both inherent and stat- utory. 80 So a statute providing that the justice or court may, if deemed necessary or proper, take testimony in proceedings to re- voke a certificate or appoint a referee for that purpose, by whom the proof shall be submitted to the justice or court, is constitu- tional. 81 And upon appeal from an order dismissing a petition to revoke a certificate the petitioner cannot unsuccessfully contend that an order of reference directing an expression of opinion by the referee was not authorized by the Liquor Tax Law. 82 But the provisions of the New York Liquor Tax Law authorizing the justice, judge or court, on the return day of an order to show cause why a liquor tax certificate should not be cancelled, to cancel the certificate unless the holder, if duly served, then files a verified answer denying all the allegations alleged are unconstitutional, and where on the return day the holder refuses to file such an answer and attacks the constitutionality of the statute the court cannot take testimony or appoint a referee and will not cancel the certificate. 83 78. Commonwealth v. Bearce, 150 81. Matter of Lyman, 46 App. Div. Mass. 38!), 23 N. E. 00. (N. Y.) 387, 01 N. Y. Supp. 884. 79. People v. Haughton, 41 Hun 82. Matter of Plass, 71 App. Div. (N. Y.) 558. (N. Y.) 488, 76 N. Y. Supp. 2. so. Matter of Cullman, 03 App. 83. Matter of Cullinan, 40 Misc. R. Div. (N. Y.) 540, 87 N. Y. Supp. (N. Y.) 423, 82 N. Y. Supp. 337. 817. See also Matter of Cullinan, 97 See also Matter of Cullinan, 97 App. App. Div. (N. Y.) 122, 89 N. Y. Div. (N. Y.) 122, 89 N. Y. Supp. 683. Supp. 683. §§ 324, olTi, W,] INVOCATION, SURRENDEB AND REBATE. 38] § 324. Excerising power to revoke — mandamus. The power of public officials to revoke a license can only be exercised in conformity to and in accordance with the authority delegated. 81 And the proceedings of a licensing board in re- voking a license must show affirmatively that such board had jurisdiction. 85 Where the duty devolves upon a board to revoke a license for a specified cause it may be campelled by mandamus to perform that duty. 87 § 325. Evidence. In any proceeding to revoke a liquor tax certificate a viola- tion of the statute must be established by legal proof before the certificate can be cancelled. 87 And in such a proceeding the defendant may testify in his own behalf. 88 § 326. Staying proceedings. Where proceedings taken to revoke a liquor tax certificate for the falsity of material statements contained in the application therefor have resulted in an order of revocation and the same has been entered and served, a stay of proceedings pending an appeal from the order will not be granted. 89 And a pro- 84. State v. Lichta, 130 Mo. App. Mandamus will not issue to 284, 109 S. \V. 825. compel the revocation of a void Disqualification of member of license. — State v. Ludington, 33 Wis. board. — A member of a board which 107. lias the power to revoke licenses has In Pennsylvania it has been de- been held to be disqualified from sit- cided that where proof is made to the ting as a member of such board in in- court that the party holding the li- vestigating a matter and revoking a cense has violated any of the laws license where such member was in- relating to the sale of liquor the stat- strumenlal in procuring evidence ute is mandatory upon the judge to against the licensee. State v. Brad- revoke the license he having no dis- ish, 95 Wis. -205, 70 N. W. \~1. 37 cretion in the matter. Genova'a Li- L. R. A. 289. cense. 3 Pa. Dist. Kep. 722. ss. State v. Lamos, 26 Me. 258. s ~- Matter of Cullinan, 39 Misc. R. 86. State v. Johnson, 37 Neb. 362, (N. Y. ) ^'^. 7!) N. Y. Supp. 840. 55 N. W. 874; Swan v. Wilderson, 10 88. Cherry v. Commonwealth, 78 Okla. 547, 62 Pac. 422; State v. Va. 375. Kellogg, 05 Wis. 672, 70 X. W. 300. 89. Matter of Washburn. 32 Misc. 382 REVOCATION, SURRENDER AND REBATE. [§§ 327,328 ceeding to revoke a certificate for unlawful sales will not be stayed because of the pendency, and until the decision, of an action upon a bond given by the holder of the certificate, although the viola- tions alleged in each case are substantially the same, and this because the two proceedings are distinct and the relief contem- plated is not the same in each. 90 And a stay should not be granted pending an appeal from an order refusing a temporary injunction against a board in such proceedings. 91 § 327. Not entitled to trial by jury. The constitutional provision securing the right of trial by jury is not violated by a statute providing for the cancellation of licenses by an excise board upon a finding that the licensee has violated the laws. 92 The object of such proceedings not being punishment but the revocation of a privilege. 93 § 328. Costs of proceeding 1 . The judge or court is authorized under the New York law to charge the county treasurer with the costs of a proceeding insti- tuted by citizens to revoke a license, he being a party to the pro- ceedings. 94 But it is not proper where costs are awarded against a county treasurer in a proceeding by citizens to revoke a license to direct the payment of the casts out of the excise moneys. 95 In Wisconsin it has been decided that the common council in revoking a license represents the city, and where it has acted in good faith though under a mistake, as to its powers, the cost in a pro- ceeding to review its action may be adjudged to be paid by R. (N. Y.) 303, 66 N. Y. Supp. 732, man, 46 App. Div. (N. Y.) 387, 61 holding the court has no power to N. Y. Supp. 884. grant a stay. 93 « Matter of Lyman, .59 App. Div. 90- Matter of Lyman, 32 Misc. R. (N. Y.) 217, 69 N. Y. Supp. 309 (N. Y.) 621, 67 N. Y. Supp. 502. Cherry v. Commonwealth, 78 Va. 375 91. McLellan v. Mayor, 99 Wis. *>4. Matter of Seymour, 47 App 544, 75 N. W. 308. Div. (N. Y.) 320, 62 N. Y. Supp. 25 92. People v. Commissioners of Po- 95. Matter of Seymour, 47 App lice, 59 N. Y. 92. See Matter of Ly- Div. (N. Y.) 320, 62 N. Y. Supp. 25 § :V2U] REVOCATION, SURRENDEB AND REBATE. :;-:; the city. 90 And in a recenl case in this Btate in which on man- damus to compel the re-vocation of a liquor license it appeared, among other things, thai the I!'' 1 use period had expired lx-fore the cause was heard on appeal from a judgment, entered during the life of the lic< nsee, < rroneously denying the writ it was held that the relator was entitled to a reversal of the judgment with costs and to have judgment for costs in the trial court. 97 § 329. Reviewing action — certiorari. Where the proceedings in revoking a license are alleged to be illegal the remedy is by common law certiorari to bring them up for review and not by a proceeding in equity to declare the revo- cation void and to enjoin the police officials who threaten to air si the licensee for selling without a license. 98 The pendency of pro- ceedings on certiorari to review the revocation by a village board of a liquor license, does not operate as a bar to prosecution for sales made during that time which would have been justified by the license had it not been revoked." When it is sought to review the action of a village council in canceling a liquor license, the writ must be directed to the village council, and not to the presi- dent and recorder of the village. 1 96. Common Council of Oshkosh board revoking a license. Common- v. stale, 59 Wis. 425, 18 X. W. 324. wealth v. Campbell, 12S Ky. 252, L07 So. State, 59 Wis. 425, 18 N. W. 324. S. W. 797. 97. Stale ex rel Conlin v. City of An appeal from an order dis- Wausau, 137 Wis. 311, 118 X. W. missing a writ of certiorari to re- Sio. view the action of ;i city council in 08. Gaertner v. Fond du Lac. 34 revoking a liquor license will be Wis. 497. missed where prior to the hearinj Certiorari will lie to review licei spired by lapse of time the action of a county court in Bince there is no longer any contro- revoking a license in Missouri where versy. Holppa v. City Council of it acts in excess of its jurisdiction or Aberdeen, -'it Wash. 554, 76 Pac. 7m. without jurisdiction. State v. Lichta, '•"*• Neuman v. State. 76 Wis. 112, 130 Mo. App. 284, 100 S. W. 45 N. W. 30. City entitled to notice of ap- '• State v. Village Council. (Minn. peal by licensee from order of local 1909), 120 X. W. 894. 3S4 REVOCATION, SURRENDER AND REBATE. [§ 330 § 330. Right to rebate — no statute. In the absence of a statute authorizing it a licensee is not en- titled to a rebate for the unexpired term. Such a right is depend- ant upon a statute and where there is no statute the licensee must be held as taking his license subject to such laws as prevail. 2 So where a license is revoked on the ground that certain of the re- quirements preliminary to the granting of it were not complied with by the applicant and the statute contains no procision as to a recovery of the license fee or a proportionate part thereof in such a case the applicant is not entitled to recover any part of it. 3 And where a liquor license is revoked and cancelled by the state board of license commissioners because of illegal sales, the licensee is not entitled to a repayment of the fee pro tanto for the unexpired term although he may have been found not guilty of the offense upon a trial by jury, there being no provision in the statute therefor. 4 Again where city authorities had received the license fee and issued a license to an applicant and subsequently during the term of the license a state law was passed raising the license fee and when the law went into effect the licensee without any interference or direction from the municipal authorities ceased to engage in the sale of liquor and before the term expired applied to such authorities for a return of the proportionate fee for the rest of the term and the application was not acted upon during the term of the license by the officials then in office but their suc- 2. Alexander v. State, 77 Ark. 204, clared that unless a license is abso- 91 S. W. 181; McGinnis v. Medway, lately void at its inception it is valid 17ii Mass. 07, 57 N. E. 210; Toman v. until revoked, and the licensee takes West field, 70 N. J. L. 610, 57 Atl. 125. his chances about its revocation, Effect of stipulation tliat re- whether he be at fault or not, and he vocation illegal. — A stipulation must be assumed to have consented that the order of revocation of a li- to stand in the case of a revocation cense was made illegally cannot au- where the statute leaves him, as re- thorize the court to entertain a suit spects his right to recover a whole or to recover the license fee. Toman v. a part of the license fee. Westfield, 70 N. J. L. G10, 57 Atl. 125. 4. Parrent v. Little, 72 N. H. 5G6, 3. McGinnia v. Medway, 176 Mass. 58 Atl. 510. 67, 57 N. E. 210, wherein it is de- §§ 331,332] REVOCATION, SURRENDER AND RKI'.ATK. 385 cessors resolved to refund the money it was held that a petition by citizens and taxpayers to enjoin such repayment, which alleged these facts was not open to general demurrer as the money paid for the license had passed into the ownership of the city, beyond any means of redemption and the succeding municipal authorities had no discretion or power to dispose of public funds in the man- ner attempted. 5 § 331. Right to rebate — where statute. In some states provision is made by statute for a rebate where the license is surrendered or is revoked under certain conditions. A statute providing that upon the surrender of a license a reason- able allowance shall be made for the unexpired term means that a right to sell liquor by virtue of the license must exist at the time of its surrender and one whose license has been revoked before its surrender is not entitled to such allowance. 6 In Nebraska the rule is that where a liquor license has been issued and is there- after cancelled without fault of the licensee he is entitled to a repayment pro tanto of the sum paid for the unexpired time. 7 § 332. Surrender — right to rebate — New York. The right to a rebate in New York is construed as resting upon a contract between the licensee and the state. 8 The right to the rebate is a qualified one which is subject to a compliance with the conditions prescribed in the statute. 9 Under the Liquor Tax Law the conditions imposed thereby upon the right to a rebate for 5. City of Fitzgerald v. Witehard, where license money was paid to a 130 Ga. 552, 61 S. E. -227. village treasurer and lie paid it over 6. City of Louisville v. Cain (Ky. to the school district, on cancellation C. A. 1900), 110 S. W. 763. of the license thai the licensee might Sufficiency of petition in an ae- maintain an action against the school tion to recover back the unearned district for its repayment. portion of a license fee. Allsman v. 8. People v. Clement, 134 App. DJv. Oklahoma City, (Okla. 1008), 95 Pac. (N. Y.) 462 . 468. »• Matter of Lyman, 59 App. Div. 7. School District v. Thompson. 51 f X. Y.) 217, 69 X. Y. Supp. 300. Neb. 857, 71 N. W. 728, holding 386 REVOCATION, SURRENDER AND REBATE. [§ 332 the unexpired term of a liquor tax certificate are conditions pre- cedent and the property right therein does not attach if there is an arrest or indictment or other prosecution provided for in the statute pending at the time of the surrender or within thirty days thereof. 10 " To entitle the holder to the rebate there are certain conditions precedent, the fulfilment of which must be completed at the time of the surrender, and being conditions precedent their fulfilment must be alleged and the burden of establish- ing them is upon the certificate holder. These conditions are as follows: First, there must be no complaint, prosecution or action pending on account of a violation of the Liquor Tax Law; second, the person surrendering must not have violated any provision of the Liquor Tax Law during the excise year for which the certificate was issued; third, the certificate must be surrendered before arrest or indictment for a violation of the Liquor Tax Law; fourth, the person surrendering must have ceased to traffic in liquors during the term for which the tax was paid." n The right of a licensee to the rebate depends upon whether there has been a violation of the law by him and not upon the fact that there has been a conviction for a violation. 12 And where the forfeiture of the rebate allowed after the voluntary surrender by the holder of a certificate under the New York Liquor Tax Law, must rest upon " any other reason " than the grounds specifically stated in the statute, it should appear in the statute .itself, or in some other statute, what is meant by such phrase and should not be left to the accuser to devise it or for the court to spell it out in penal cases, from reasons of public policy. 13 10. People v. Cullinan, 168 N. Y. 12. People v. Clement, 134 App. 258, HI N. E. 243. Div. (N. Y.) 402, holding it not neces- 11. People ex rel. Ferdinand Mun- sary to show a previous conviction it ich Brewery v. Clement, 117 App. Div. being sufficient to show a violation (N. Y. 539, 102 N. Y. Supp. 779. according to the rules governing the Per Clarke, J., quoted in People v. trial of civil actions. Clement, 134 App. Div. (N. Y.) 13. Matter of Lyman, 163 N. Y. 462. 563, 57 N. E. 745. §§ 33.3,334] REVOCATION, SI EtRENDEB AND REBATE. 387 § 333. Surrender — right to rebate— New York. Under the Liquor Tax Law of ls'.tti in New Vork prosecutions pending at the time of the issuance of the certificate and which are pending a1 the time of the surrender thereof, or within thirty davs thereafter, apply with equal force and have the same effect upon the right to a rebate as violations committed after the cer- tificate lias been issued, 14 and this rule was not changed by the amendment of 1903. 15 So where a liquor tax certificate was issued to one who at the time of issuance was under indictment for violating the Liquor Tax Law while bartender of the holder of another certificate, and therafter he was convicted of the crime charged, neither he nor his assignee is entitled to a rebate on offering the certificate for cancellation. 16 But an order of dis- charge by a city magistrate of the city of New York, reciting a determination that there is no sufficient cause to believe the accused person guilty of a violation of the Liquor Tax Law is held to be a dismissal of the proceedings on the merits within the mean- ing of the provision of such law as to payment of a rebate where a certificate is surrendered. 17 § 334. Procedure to obtain rebate — New York. One who has surrendered his liquor tax certificate, and has 14. People v. Cullinan, 108 X. Y. cme who has been convicted of a 258, 61 N. E. 243 ; Matter of Seitz, 32 violation of the act can lawfully Misc. R. (N. Y.) 108, 65 N. Y. Supp. traffic in liquors within thai period. 4(!2. People ex rel. Zeltner Brewing Co. v. IB. The amendment to § 25 of the Clement, 128 App. Div. (N. Y.) 530, Liquor Tax Law. made by chapter 480 112 N. Y. Supp. 051 . of the Laws 1903, did not so change 16. People ex rel. Zeltner Brewing the law that the right to rebate is for- Co. v. Clement, 128 App. Div. (N. feited only when the offense is com- Y.) 530. 112 \. Y Supp. 951. mitted during the life of the certifi- it. People ex rel David Stevenson cate, and there can be no rebate if Brewing Co. v. Lyman, 69 App. when the certificate is surrendered, Div. (N. Y.) 400. 74 X. Y. Supp. three years have not elapsed since a 1104. See also People ex rel. Joseph conviction of the original holder for Fa licit Brewing Co. v. Lyman, 53 a violation of the Liquor Tax Law, App. Div. (N. Y.) 470. i\r, X. Y. for by virtue of * 23, as amended by Supp. 10(12. chapter G80 of the Laws of 1005 no 388 REVOCATION. SURRENDER AND REBATE. [J 335 taken the receipt of the county treasurer which entitles him to a rebate can only pursue the method pointed out in the statute to enforce payment of the same. 18 And the making of duplicate receipts by the county treasurer and the transmission of one of them together with the tax certificate and the petition for cancel- lation thereof to the commissioner of excise is a prerequisite to the making by him of the orders for the payment of the rebate. 19 But where the question of the validity of a liquor tax certificate is brought into court the county treasurer has no authority to accept its surrender and refund the pro rata amount of the tax for the unexpired period. 20 And the execution of the duplicate receipts by the officer who executed the certificate, upon its sur- render is not an adjudication that the allegations contained in the petition by the licensee in connection with the surrender of the license are true so as to bind the state commissioner of excise upon whom the duty of paying the rebate devolves. 21 § 335. Right to rebate — mandamus — New York. The issuance of an order by the state commissioner of excise for the payment of a rebate on a liquor tax certificate may be compelled by mandamus, where in a proper case he refuses to issue such an order. 22 So a licensee, or his assignee, seeking to compel the payment of a rebate after the surrender of his certifi- cate is entitled to an alternative writ of mandamus where his 18. Ging v. Sherry, 32 App. Div. papers is entitled to surrender it, he (N. Y.) 354, 52 N. Y. Supp. 1003. issues the duplicate receipts and sends 19. People ex rel. Ochs v. Lyman, the certificate to the Commissioner of 25 Misc. R. (N. Y. ) 217, 55 N. Y. Excise, without any knowledge of the Supp. 70. rights of an assignee. Albany Brew- 20. Matter of Johnson, IS Misc. R. ing Co. v. Barckley, 42 App. Div. (N. Y.) 498, 42 N. Y. Supp. 1074. (N. Y.) 335, 59 N. Y. Supp. 65. A county treasurer is not 21. People ex rel. David Stevenson guilty of conversion where, upon Brewing Co. v. Lyman, 07 App. Div. delivery of the tax certificate by the (N. Y.) 440, 73 N. Y. Supp. 987. receiver of the one to whom it was 23 » Knapp v. Scanlin, 36 Misc. R. issued and who on the force of the (N. Y.) 756, 74 N. Y. Supp. 458. g 336] REVOCATION, SURRENDER AND REBATE. 389 petition alleges that, although there was a single conviction of one of his employees, there was no violation of law by him, for a question of fact is raised.-" And where an alternative writ of mandamus is addressed to the state commissioner of excise for the payment of a rebate called for by duplicate receipts and a return is served by him denying the allegations therein the burden is on the one, procuring such writ, to show that the allegations are true. 24 § 336. Right of assignee to rebate— receiver. Under the New York law the right of an assignee of a liquor tax certificate to recover the rebate may be lost not only by acts of his but also by those of his assignor. 2 In order for an assignee of a liquor tax certificate to recover the rebate provided for by statute upon the surrender of the certificate he must show that there has been no violation of the Liquor Tax Law during the excise year for which the certificate was issued. 26 So if a liquor tax certifi- cate, issued to a firm and assigned as collateral security, is sur- rendered by the assignee, under a power given by the assignment and a rebate receipt is issued to him the arrest, within thirty days thereafter, of one of the firm for a violation of the Liquor Tax Law suspends the right of the assignee to the rebate. 27 And where the one to whom a tax certificate has been issued could not 23. People v. Clement. 134 App. tifioate assigned to another may be Div. (N. Y) 162. cancelled for persisted violations of 24. People ex rel. David Stevenson the law by the one to whom it was Brewing Co. v. Lyman, H7 App. Div. issued and who continued to eon- (N. Y.) 466, 7:! N. Y. Supp. 987. duct the business after the assign- 26. People v. Clement, 128 App. ment. Matter of Bradley, 22 Misc. R. Div. (N. Y.) 539, 112 \. Y. Supp. (N. Y.) 301, 49 N. Y. Supp. 1100. 951; People ex rel. A. Hupfel's Sons -'<:. People ex rel A. Hupfel's Sons v. Cullinan, 95 App. Div. (N. Y.I v. Cullinan, 95 App. Div. (N. Y.I 598, 88 N. Y. Supp. 1022; People 598, 88 N. Y. Supp. 1022. ex rel. David Stevenson Brewing Co. 27. People v. Lyman, 156 N. Y. v. Lyman, 69 App. Div. (X. Y.) 407, 50 N. E. 1112, affg 27 App. Div. 406, 7 1 X. V. Supp. 1104. 527, 50 X. Y. Supp. 407. See note, Where assignor continues to 32 X. Y. Ami. Rev. Ed. 158, as to conduct business. — A liquor tax eer- cancellation and rebate. 390 REVOCATION, SURRENDER AND REBATE. [§ 337 under the law in New York if he retained the certificate in his own name enforce the payment of the rebate he cannot by a volun- tary transfer of such certificate without consideration confer any greater right upon the assignee to such rebate than he himself possessed, and consent given by a special deputy commissioner to such transfer does not condone an offense for which the certificate could be revoked so as to operate either to his benefit or that of his successor. 28 And where pending an application for a sur- render of a liquor tax certificate and the payment of the rebate a judgment is recovered by a creditor who procures the appointment of a receiver an order will not be granted to the latter directing the payment by the state commissioner of excise of the rebate as the moneys are not held by the latter, orders being merely issued by him upon the proper officers for its payment. 29 § 337. Right of licensee as affected by acts of employee — revoca- tion — rebate. The violation of the law which will forfeit the right to a rebate does not mean a personal violation by the certificate holder but also includes a violation by an agent of his in the course of his duty. 30 "While the system of regulation of intoxicating liquors grants the licensee the privilege of conducting his business through an agent it also imposes on the licensee the affirmative duty to see to it that every regulation is obeyed by his agents as well as him- self, and such a licensee is answerable for the acts of his bar- keepers though he is absent from his place of business and had instructed such agents not to make forbidden sales. 31 So a sale by an agent of the licensee in violation of the law though made contrary to the orders given to him by the licensee who was con- 28. Matter of Cullinan, 87 App. SO. People v. Clement, 134 App. Div. (N. Y.) 47. S3 N. V. Supp. 1025. Div. (N. Y.) 402. 29. Knapp v. Scanlin, 36 Misc. R. »*• State v. Wausau, 137 Wis. 311, (N. Y.) 750, 74 N. Y. Supp. 458. US X. W. 810. See People v. Meyers, 95 N. Y. 223. S 338] REVOCATION', SURRENDER AND REBATE. :;:n tiinially about the premises ls presumed to have beer known to the Latter and he will be chargeable with knowledge thereof in pro ceedings to revoke the license. 32 And the righl to a rebate on a liquor lax certificate is Los1 by a violation of the law by an em- ployee of the certificate holder though he may not have been presenl when such violation took place. 83 And where a bar-keeper sells liquors to minors it is a violation of law for which a license may be revoked though the licensee may have instructed the bar-keeper aol to make such sales. 34 And where violations of the Liquor Tax Law occur in a place ostensibly conducted under an outstanding liquor tax certificate and the person in charge is using it with the consent of the holder thereof, the latter is held liable under the statute for violations so far as affects the question of cancellation of the certificate. 35 § 338. Effect of surrender before violation. It is no defense to an application for the revocation of a liquor tax certificate that the certificate had been surrendered prior to the discovery of the violation and the commencement of the pro- ceedings to revoke. Such proceedings may be instituted at any time during the excise year for which such certificate was issued. 36 So the fact that a violation of the Liquor Tax Law by the one to 82. Matter of Lyman. 2!) Misc. K. his employment, sold intoxicating liq- (X. V.i 525, til X. Y. Supp. 946. uora to a minor, the saloon keeper is See Moyer's License, 20 Pa. Co. Ct. guilty of a violation of the statute 603. and it becomes the duty of the licens- 33. People ex rel. Duncan v. Clem- ing hoard to revoke his 1 i- ent, 63 }llse. R. (X. V. i 369, 116 X. •• r - Matter of Cullinan, :;'.> Mi--. R. Y. Sun... 1098. (X- V.) 641, so X. Y. Supp. 186. :;«. Stat^' v. Beloit, 7 1 Wis. 267, 42 36. Matter of Clement, 62 W X. W. 110. See also State v. Wausau, (X. Y.) -",12. lid X. Y. Supp. 1070. 137 Wis. 311, ns \. w. 810, holding Per Newburger, J., citing People v. that where a bar keeper in the absence Cullinan. 95 Ap] Div. (X". Y.) and without the knowledge of the sa- ss x. Y. Supp. 1022. See also Clem- loon keeper, and in violation of in- eni v. Yis.-nsi. 63 Misc. (N. Y.> 514, structions noi to sell to any minor, lis X\ Y. Supp. 613. Buch instructions being a condition of 3!n> REVOCATION, SURRENDER AND REBATE. [§ 333 whom a certificate has been issued has not been discovered at the time of the surrender by an assignee thereof or that no proceeding had been instituted at that time does not entitle the assignee to a rebate where there is in fact shown to have been a violation. 37 37. People ex rel. A. Hupfel's Sons, Lyman, 69 App. Div. (N. Y.) 406, 74 v. Cullinan, 95 App. Div. (N. Y.) N. Y. Supp. 1104; Matter of Lyman, 598, 88 N. Y. Supp. 1022; People 26 Misc. R. (N. Y.) 300, 56 N. Y. David Stevenson Brewing Co. v. Supp. 1020. § 339] boxds. 393 CHAPTER XV. BONDS. Section 339. Where bond required by law. 340. Construction of — extent of liability. 341. Effect of repeal of law. 342. Approval and filing of. 343. Power of board in approving— as to filing — mandamus. 344. Bond need not strictly conform to statute. 345. Recitals — misrecitals. 346. Effect of blanks. 347. As to the sureties. 348. Amount of bond. 349. Condition against violating statute. 350. Same subject — conviction for. 351. Condition as to gambling. 352. Sales to minors. 353. Sales on Sunday. 354. In case of licenses to hotels. 355. Payment of fines and costs. 356. Acts by agent of licensee. 357. False statements in application. 358. Surety not liable after surrender of certificate. 359. Conditions not required by law. 360. Liability for judgment. 361. Bond only binding as to place named. 362. Release of liability — discharge of sureties — collateral agreement. 363. Actions upon generally. 364. Parties to actions on. 365. Pleading. 366. Evidence in action on. 367. Right to quest ion validity of bond. § 339. Where bond required by law. Ordinarily it is provided by statute that an applicant for a license must give a bond upon procuring the same conditioned that he 394 BONDS. [§ 339 will conduct the business in accordance with the laws in force in regard thereto. Compliance with such a statute is essential to the validity of the license. 1 So one taking out a license to engage in the traffic of intoxicating liquors may be required by statute to give a bond with proper securities that he will keep an orderly house. 2 And a statute requiring the giving of a bond as a condi- tion precedent to the issuance of a license imposes upon the per- son giving it, the licensee presenting it, the responsibility of know- ing that it complies in all essential particulars with the law and where it is insufficient, as where one of the bondsmen is disquali- fied by law from acting as such, the licensee can not relieve him- self from liability by the fact that the officials charged with the duty of determining whether the bond was sufficient, accepted and approved it. 3 But one who makes sales under a license which has not been annulled or cancelled does not by the fact that such sales are made between the time he receives notice to file a new bond and the time that such new bond is filed commit a violation of law the statute not making such sales a penal offense. 4 And though in some states a bond is required of a druggist, 5 yet ordi- narily a statute of this character is not considered as applicable to druggists. 6 l« Indiana. — Crutz v. State, 4 Ind. 385. Maine.— State v. Shaw, 32 Me. 570. Massachusetts. — Howes v. Max- well, 157 Mass. 333, 32 N. E. 152. Michigan, — Wolcott v. Judge of Su- perior Court, 112 Mich. 311, 70 N. W. 831. Minnesota. — stale ex rel. Xicolin, v. Scheiner, 86 Minn. 253, 90 N. W. 401. Missouri. — State v. Bennett, 102 Mo. App. 247, 73 S. W. 737. Texas. — Ex parte Bell, 24 Tex. App. 428, 6 S. W. 107. Wisconsin. — State r. Fisher, 33 Wis. 154. Bond must be filed before liquor tax can be received and receipt given. Attorney-General v. Huebner, 91 Mich. 436, 51 N. W. 1072. s. Ex parte Bell, 24 Tex. App. 428, 6 S. W. 197. 3. Wolcott v. Judge of Superior Court, 112 Mich. 311, 70 N. W. 831. 4. Holland v. State, 51 Tex. Cr. 143, 101 S. W. 1003. r>. People v. Utley, 129 Mich. 628, 89 X. W. 349. 6. Moore v. People, 109 111. 499; State v. Courtney, 73 Iowa 619, 35 N. W. 685. BONDS. 395 § 340] § 340. Construction of — extent of liability. A liquor dealer's bond is to be construed like any other contract that is so as to discover and give effect to the intention of the parties, so that performance of the contract may be enforced in accordance with the sense in which it was naturally understood al the time it was made 7 The liability of the sureties attach upon the acceptance of the bond, 8 and it is no answer to an action for the breach of the conditions that the defendant is liable to a criminal prosecution for the acts constituting such breach. 9 The liability of sureties will not be extended beyond the terms of the instrument. Thus where sureties have not obligated themselves to pay damages recovered against the licensee they are not liable for damages resulting from the sale of liquors by him. 10 And where a bond is conditioned only to pay all civil damages there is no liability on the part of the sureties for a penalty recovered against the licensee. 11 In Iowa the sureties are liable for the 7. Dowait v. People, 92 111. App. 433, aff'd 193 111. 264, 61 X. E. 1059. License to firm — effect of dis- solution of. — Where a bond is given in connection with a license issued to a firm, the liability of the sureties does not continue after the dissolution of the firm though the business is con- tinued by one of the members, Scahill v. Aetna [ndemnity Co. (Mich. 1909), 122 N. \V. 78. Bond takes effect from date of filing. — A bond dors not cover acts committed prior to it being filed. Allen v. Houck & Dieter Co. (Tex. Civ. App. 1906), 92 S. W. 993. But where a liquor dealer's bond is antedated it has been held 1" relate back when filed to its date and to cover the period prior to the filing. Brockway v. Petted, 79 Mich. 620, 45 \. \V. 61. Defense of non-corapliance with law. Burden of proof. — In an action against a surety upon a bond conditioned that the principal should pay all accounts for beers ami liquors purchased by him of the plain- tiff it was held that an objection that there was no affirmative proof by the plaint ill' that it had complied with an act 7-equiring the branding of barrels and casks in which liquors are sold was without force and that the bur- den of proof, if any defense could have been based on the act. was with the defendants. Phoenix Brewing Co. v. Rumbarger, 1^1 Pa. St. 251, 37 Atl. 340. 59 Am. St. Hep. HIT. 8. Brockway v. retted. T'.i Mich. 620, -r, X. W. 61. !►. State v. Whitener, 23 Ind. 124. 10. rjldrich v. Gilmore, 35 Neb, 288, .V! X. W. 135. ii. Eeadington v. Smith, 113 Iowa 107. SI X. W. 982. Compare State v. Miller. 44 W. Va. 385, 3<> S. E. 07. 396 BONDS. [|| 341,342 payment of the mulct tax, and cannot escape payment thereof on the ground that by failure of the principal to pay the tax he is no longer operating under the law. 12 § 341. Effect of repeal of law. In case of the repeal of a liquor law subsequent to the execu- tion of a bond, the bond will cover such provisions of the law under which it was executed as are embraced in the new law. 13 But there is held to be no vested right in a penalty and where a bond was conditioned for the payment of a penalty provided for by a certain statute which statute was repealed, the liability of the sureties for the penalty was held to cease upon such repeal. 14 § 342. Approval and filing of. Where both the approval and filing of a bond is required by law such a bond has no force until both approved and filed. 15 And where the approval of a bond by the common council of a city is required a bond cannot be enforced until approved by the action of the council itself and the report of a committee approving it will not be sufficient unless such report is accepted by the coun- cil. 16 But though a statute may require the written approval of the mayor to any ordinance or resolution, yet where the approval of a liquor bond does not require any ordinance or resolution of the common council, the approval of the mayor is not necessary. 17 12. O'Brien County v. Mahon, 126 opinion in this case and granted a Iowa 530, 102 N. W. 446. writ of error which was subsequently 13. Gulliekson v. Gjorud, 89 Mich. dismissed because the supreme court 8. 50 N. W. 751. was without jurisdiction. See Long 14. Thompson v. Bassett, 5 Ind. v. Green, 100 Tex. 510, 101 S. W. 535. 786. So in Texas it has been decided that 15. Hillman v. Gallagher (Tex. Civ. a right to a penalty expired upon the App. 1909), 120 S. W. 505, citing adoption of local option and did not Allen v. Houck (Tex. Civ. App.), 92 revive in case local option was re- S. W. 996. pealed. Long v. Green (Tex. Civ. As to sufficiency of approval of App. 1906), 95 S. W. 79. The bond by a municipal corporation. See supreme court did not agree with the Prather v. People, 85 111. 36. 8 ::»••:] BONDS. 397 And though the approval of a bond should be indorsed thereon yet it has been decided thai a city suing on a Liquor bond pay- able to the city may show by parol evidence that the bond was in fact delivered to and approved by the council as required though such approval was not endorsed thereon. 18 So where the bond of a liquor dealer has been filed with the clerk and retained by him, and the principal in the bond then engages in the sale of liquors, the sureties cannot plead as a defense to the bond that no formal approval was endorsed thereon. 19 § 343. Power of board in approving — as to filing — mandamus. Where a board acts judicially in approving or disapproving a bond the members cannot be made liable in a civil action for a refusal to approve, though they may be erroneous. 20 And the good faith of a board in approving a liquor bond will not be re- viewed by the courts under a claim that there was an insufficient investigation as to the pecuniary responsibility of the sureties 16. Garrison v. Steele, 46 Mich. 98, 8 N. W. 696. 17. O'Halloran v. Mayor, etc., of City of Jackson. 107 Mich. 138, 64 N. W. 1046. 18. Decherd v. Drewry, 64 Ark. 599. 44 S. W. 351. 19. Thomas v. Hinkley, 19 Neb. 324, 27 N. W. 231. so. Amperse v. Winslow, 75 Mich. 234, 42 N. W. 823. In one of the earlier cases in Michipan it was decided that the pro- vision of an act authorizing the re- jection of a bond by the approving board if the principal is known to them "to be a person whose character and habits would render him or her an unfit person to conduct the busi- ness of selling liquor" was uncon- stitutional. Robison v. Miner, 68 Mich. 549, 37 X. W. 21. The eourl said: " Where licenses arc granted to limited numbers of people, it is some- times provided that applicants shall present evidences of character in the place where they live; but it would be anomalous to allow any one to be disqualified from business and branded with disgrace, both of which are really heavy punishments, on the mere will of anybody. * * * If the statute had fixed the rule, there would be means of protecting parties against caprice and condemnation unheard. But whim the same persons are to be judges of the proper causes of rejection, as well as of the fitness of persons under such causes, the law subjects every one <<> the I will of his neighbors, and gives him no rights whatever. Xo man's ri can be submitted, under a constitu- tional governmenl to the discretion Of anybody." Per Campbell, J. 39S B0NDS - [§ 343 and a consequent error in judgment on the part of the hoard. 21 And where a board having the power to approve or disapprove the bond of a liquor dealer refuses to approve the same and it does not appear that their action was arbitrary or capricious or in bad faith, approval will not be compelled by mandamus. 22 So where a majority of the board vested with the power to approve bonds refused its approval of a bond on the ground that one of the sureties was not financially qualified it was held that approval would not be compelled bj mandamus it not appearing that the action of the board was arbitrary or not in good faith. 23 But the board cannot act arbitrarily in refusing to approve and accept bond and if they do may be compelled by mandamus to act. 24 So a village council having in good faith, without passing on the sufficiency of sureties, refused to accept a liquor bond, mandamus should merely require the council to examine into the sufficiency of the sureties and to approve the bond if found sufficient. 25 And power conferred upon a common council to suppress saloons must be exercised by ordinance and where the only ordinance in force is one fixing the amount of bonds, the council cannot arbitrarily reject a bond which complies with the terms of such ordinance on the ground that it is done in the exercise of the power to sup- press. 26 So where village authorities in refusing to approve a bond have acted arbitrarily and in bad faith mandamus will be granted to compel them to approve such bond, it appearing that it conforms to law and that the sureties are financially able to qualify. 27 Again where it was required by statute that a bond 21. Brio's v. McKinley, 131 Mich. 24. McLeod v. Scott, 21 Oreg. 94, 154, 91 N. W. 156. 2GPac. 1001, 29 Pac. 1. 22. Parker v. Portland, 54 Mich. 25. Hawkins v. Common Council 308, 20 N. W. 55; Nordstrom's Peti- of Village of Litchfield, 120 Mich. lion (Commonwealth v. Wilson), 127 390. 79 N. W. 570. p a st 542 is Atl. 001. 26. Hawkins v. Common Council of 23. Divine v. Lakeview, 121 Mich. Village of Litchfield, 120 Mich. 390, 433 80 X W. 100: Post v. Township 79 N. W. 570. Board of Rparta, G4 Mich. 597, 31 X. 27. Farr v. Anderson, 135 Mich. w 535 485, 98 N. W. 6. § 344] BONDS. 399 should be filed with the municipal authorities on <>r before a cer- tain date and it was so filed bul the approval was postponed until a few days after the date specified and on the date to which con- sideration and approval of the bond was postponed the authori- ties refused to approve it because of an ordinance which took effect on that date, it was held that the action of the authorities in refusing to act upon such bond could not be justified by the ordinance. 28 And where a bond has been approved there is no discretion as to acceptance and filing of the same. 29 § 344. Bond need not strickly conform to statute. A bond which complies in form and substance with the statute is sufficient though there is not a strict compliance therewith. 30 So a hond though it may not he conditioned according to the stat- ute yet if it clearly shows its purpose and is substantially a com- pliance therewith it is sufficient. 31 And sureties upon a bond cannot escape liability upon the ground that the bond docs not conform to the exact language of the statute where they presented it for acceptance after execution and it was accepted and the license issued to one who has received all the benefits there- under. 82 Again a bond may be good as a common law obligation though not in conformity to the statute. 33 28. Warner v. Lawrence, 02 Mich. same effect as if "conditioned in all 251, 28 N. W. si l. respects as required by law: Provided 20. Brockway v. retted, 70 Mich. such bond had the effect in such pro- 620, 45 X. W. 01. eeeding which a hond payable and con- 30. Crawley v. Commonwealth, 123 diiioned as prescribed by law would Pa. St. 275. Hi Atl. 410. have had." By statute in force in BOme states 81. Edgar v. State, 40 Tex. Civ. a bond though it does not contain all App. 171. 102 S. W. 430. the conditions required by law is 32. Lyman v. Thucker, 20 Misc. It nevertheless valid ami enforceable. I X. V.) 594, 56 X. Y. Supp. 7t',7. State v. Depeder, 05 Miss. 20. 3 So. See also State v. Wharton, 20 Tex. 80, so holding where a statute pro- Civ. App. 202, 03 S. \Y. 915, vided that a bond executed in "any 83. O'Brien County v. Mahon, 126 legal proceeding" should have the Iowa 539, L02 X. YV. 446. 400 BONDS. [§§ 345,340 § 345. Recitals — misrecitals. The recitals in a bond are binding, and estop one to deny them. 34 So a recital in a bond that a license was duly issued estops the sureties from denying such fact. 35 But where it appears that words in a bond were inserted by mistake through a mere clerical error they may be treated as surplusage and the bond construed as though they were not in it. 36 Such a misrecital does not avoid the bond where there is no difficulty in assertaining from the whole instrument the intention of the parties. 37 So the bond stands as an indemnity to the state generally and a surety will not be allowed to defeat a recovery thereon by the fact that the bond recites the wrong number on the street as the place where the busi- ness is to be carried on, it appearing that the mistake was that of the principal for whom the surety stands. 38 § 346. Effect of blanks. A bond may be valid and enforceable though as delivered it contains blanks. So where in a liquor dealer's bond the penalty has by mistake been left blank it will be held valid at the lowest statutory penalty when the sureties have justified at that sum in accordance with the statute requiring the justification to conform to the penalty. 39 And though a bond contains blanks which are not filled at the time of evecution but which should be filled, as is known by the obligors, before delivery and they are so filled and it nowhere appears that they were filled contrary to the expec- tations of the obligors, the bond will not be thereby vitiated. 40 34. Anderson v. Commonwealth, Co., 41 Misc. R. (N. Y.) 119, 83 N. Y. 105 Va. 533, 54 E. E. 305. Supp. 909, so holding where the busi- 35. Moniteau County v. Bechtle, 123 ness was at 257 Main Street and the Mo. App. 673, 100 S. W. 1107. bond recited it as being at 256 Main 36. Dowiah v. People, 92 111. App. Street which was a vacant lot. 433, aff'd 193 111. 264, 61 K E. 1059. 39. Garrison v. Steele, 96 Mich. 98, 37. Howes v. Mavwell, 157 Mass. 8 N. W. 696. 333, 32 X. E. 152. 40. Greene County v. Wilhite, 29 38. Cullinan v. Fidelity & Casualty Mo. App. 459. §§ 347,348] BONDS. H.l § 347. As to the sureties. As to who may be a surety on such a bond is generally provided for by the terms of the statute under which it is given. 11 A stat- ute providing that a person shall not become surety on more than two liquor bonds is constitutional. 42 But though a person signs two or more bonds in contravention of the statute yet this will not affect his liability on cither of them, as such a provision in a statute will, in the absence of a declaration that one of the bonda will bo void, be construed as in the nature of a direction merely to the boards which approve them. 43 § 348. Amount of bond. The bond should name a sum therein as a penalty to render it enforceable. 44 But though the penalty of a bond may be in excess of the amount provided for in the statute for a single bond yet if not in excess of the aggregate amount of the bonds required, but is equal thereto, the bond is not void on that ground. 45 The 41. Matthews v. People ex rel. Streeter, 149 111. 399, 42 N. E. 8C4, rev'g 59 111. App. 146, holding that a surety need under the statute, only be a freeholder of the county, it not being necessary that he be a resident thereof. 42. Wolcott v. Judge of Superior Court, 112 Mich. 311, 70 N. W. 831. 43. Thomas v. Hinkley, 19 Neb. 324, 27 N. W. 231. 44. Louisville v. Cain (Ky. C. A. 1909), 119 s. \Y. 7C,:}, holding that a statement in an affidavit by sureties as to their solvency made preparatory to signing the bond that they had property of a certain value is not carried by inference into the bond and there being no provision of law as to the penal sum to be inserted the sure- ties are under no liability. Under the New York Liquor Tax Law, § 18 as amended in 1897 the state commissioner of excise was authorized to maintain an action upon the bond either for the recovery of the entire penalty for any breach of any condition of the bond or for the amount of any penalty or penalties incurred or imposed for a violation of the law. Lyman v. Perlmutter, 166 N. Y. 410, 60 N. E. 21, aff'g 49 App. Div. 630, 62 N. Y. Supp. 866. And in this state it has been de- cided that the surety upon a bond given is not limited as to the amount of recovery against him to the civil or criminal penalties prescribed in the act for a violation of its provisions. Lyman v. Shenandoah s.ui.i 1 Club, 39 App. Div. (N. Y.) 4.',!). 57 NT. Y. Supp. 372, cited in Lyman v. Gram- ercy Club, 39 App. Div. (N\ Y.) 661, 57 X. Y. Supp. 376. i~. Greene County v. Wilhite, 29 Mo. App. 459. 402 BONDS. [§ 349 amount fixed in the bond is in the nature of a penalty and not liquidated damages where the statute is silent upon the subject. 46 § 349. Condition against violating statute. It is not necessary in the bond to embody the act for a violation of which the bond is conditioned against it being held sufficient if the law to which reference is made can be clearly identified. 47 So where a bond provides that a license has been granted pursuant " to the laws " of the state and is conditioned that the licensee " shall not violate any of the provisions of said laws " it is held to be sufficient as by such reference the condition will be construed as referring to the laws relating to intoxicating liquors under which the license was granted. 48 And where a bond is condi- tioned for the observance of " all laws relating to intoxicating liquors" the keeping open of the place on Sunday is a breach of the bond although such act is forbidden by a statute relating to Sunday and not by that relating to intoxicating liquors. 49 A con- The fact that a bond is given for a sura in excess of that required by the statute does not affect its valid- ity. Barry County v. Sherman, (Mo. App. 1910), 125 S. W. 781. 46. State v. Larson, 83 Minn. 124, 86 N. W. 3. See State v. Vinson, 5 Tex. Civ. App. 315, 23 S. W. 807. 47. Plucknett v. Tippey, 45 Neb. 342, 63 N. W. 845. 48. Providence v. Bligh, 10 R. I. 208. See Tripp v. Norton, 10 R. I. 125. u>. Quintard v. Corcoran, 50 Conn. 34. Sale to intoxicated person where the bond is merely conditioned to pay the penalty in ease of a sale to an intoxicated person, the question of care exercised by the seller is immaterial if in fact a sale was made to such a person. State v. Dubruiel (N. H. 1909), 74 Atl. 1048, wherein the Court said: "The de- fendant's contract with the state evi- denced by his bond was that in case, in the exercise of his license, liquor should be sold to an intoxicated per- son, he would pay the state the dam- ages thereby occasioned, even if the sales were made by one of his ser- vants without his knowledge and against his express command. State v. Corron, 73 N. H. 434, 446, 450, 454, 62 Atl. 1044. As the object of the bond is the protection of the state and not the punishment of the licen- see * * * the material question is whether that has been done which the bond stipulated should not be done. Since good faith in the defen- dant would not protect the state from loss the contract cannot be con- strued in accordance with the re- quested instruction without destroy- ing the purpose of the bond. The § 350] BONDS. 403 dition to keep all the provisions of the code is to be construed as meaning the code with such amendments as were in force when the bond was executed. 60 Again where a judge is authorized to take a bond with surety from a person conditioned not to violate the revenue laws of the state if upon a hearing after an arrest for violation of such law he has probable cause to suspect him guilty of such violation the requirement as to " probable cause to sus- pect " is sufficiently answered by the indictment of the defendant, his appearance and the giving of the required bond.' 1 § 350. Same subject — conviction for. Where a statute provides merely that a bond will be for- feited for a violation of the statute and does not make a convic- tion a pre-requisite to forfeiture a conviction is unnecessary. 52 Where conviction is essential a person will be regarded as " con- victed " of a crime when he has been found guilty by a jury or has pleaded guilty although there has been no sentence or judg- ment by the court. 53 And though a sentence in a liquor prosecu- tion may be illegal yet if no appeal has been taken from the con- nection it will operate to forfeit the bond. 54 Again a recovery upon a bond given by a liquor tax certificate holder maj be had though such holder was convicted on the testimony of special absence of express terms limiting the whether Delphanier was sober or not defendant's covenent to ordinary care at the time of the sale then your in the exercise of the privilege con- verdict should be for the defendant." ferred by the license, and the general 50. OTlinn v. State, 66 Miss. 7, purpose of the bond establish that 5 g 390. no such limitation was intended. * * B1> An(1(ir , (1I1 v Commonwealth, * As the terms of the contract were 1Q5 v& -.,., - ( g ,, ..,,- that no liquor should be sold snch a ', , . ,, , •»-• State v. Pierce. 2(. Ixans. ,,,. person, and the breach alleged was 1 , ,. See also Granger v. Hayden, 1< H. I. snch a sale, the instruction was prop- ' , ,, ,, - ' T 179, 20 All. 833, citing Coggeshall v. erly refused." Per Parsons, C. J. ' , . ,, . Tollitt. 1.) K. T. ins, 1 Atl. 41. J. The court refused in this case to instruct the jury as follow- "If 53. Quintard v. Knoedler, 53 Conn. the defendant did all that a reason- *85, 2 Atl. 752, 55 Am. Hep. 149. ably prudent man should do under 54. Jacobs v. Eolgenson, 70 Conn, the circumstances to determine 68, 38 Atl. 014. 404 BONDS. [§§ 351,352 excise agents who lawfully entered the place to investigate and subsequently during prohibited hours, bought liquors in the same manner as ordinary customers without practicing cocercion, mis- representation, fraud or deceit. And though such agents acted beyond their instructions such purchases are to be regarded as their own acts and the state is not estopped from recovery. 55 § 351. Condition as to gambling. Under the laws in force in some states a breach of the bond occurs where gambling is permitted upon the licensed premises. Where a bond contains a condition not to permit gambling upon the premises the surety is not relieved from liability for a breach of such condition by the fact that there is a subsequent provision in the bond that it is to cover every violation of the liquor law, which law does not prohibit gambling, such provisions being regarded as no qualification of the previous condition. 56 And where in an action on a bond a breach of the conditions was alleged in that gambling was permitted in a room attached to the dramshop it was decided that the jury should be instructed that in order to hold the defendants liable on the bond they must find that the dramshop keeper had control of the room where the gambling was carried on and that such control might be shown by a collu- sive renting or a retention of control by a participation in the business. 57 Under a condition of this character the maintenance of a nickel slot machine is a breach thereof. 58 § 352. Sales to minors. In many states a bond either by an express condition therein 55. Lyman v. Oussani, 33 Misc. R. 58. Lyman v. Brucker, 26 Misc. R. (N. Y.) 400, 68 N. Y. Supp. 450. (N. Y.) 594, 56 N. Y. Supp. 767. 56- Lyman v. Kurtz, 166 N. Y. 274, A " nickle slot machine" when a 59 N. E. 003, aff'cf 48 App. Div. 633, contrivance by which it is determined 62 N. Y. Supp. 1141. who, as between the player and pro- r »7. McPherson v. Simmons, 63 Ark. prietor, is the winner or loser of 593, 40 S. W. 78. See Horan v. Chief money hazarded, is a gambling device. Justice, 27 Tex. 226. Lyman v. Kurtz, 166 N. Y. 274, 59 § 352] BONDS. 405 or by tho general condition is violated by a sale to a minor. 69 So a licensee by a sale to a minor, which sale is forbidden by stat- ute under penalty, violates a condition in the bond that he will not allow the place to become disorderly. 60 And where a bond is conditioned against permitting a person under the age of twenty- one years to enter and remain upon the premises one who is under such an age is within the meaning of the condition though his father has " emancipated " him. 61 And if within the meaning of the statute a minor is permitted to enter and remain upon the premises of the licensee where the business is carried on the good faith of the latter in permitting him to do so does not prevent it from being a breach of the bond. 62 Again where it is a violation of a bond to permit a minor to enter and remain upon the premises it is immaterial in an action on such bond that it is alleged that a minor was allowed to enter and remain upon the premises as a bartender and that the proof tended to show that he acted as porter as the allegation as to the capacity in which such minor acted is unnecessary and may be treated as surplusage. 63 But where the statute provides that a liquor dealer shall not permit a minor to "enter and remain" upon the premises it has been held error in an action on a bond for a violation of the statute to in- struct the jury that a breach may be established by evidence show- ing that the minor was permitted either to enter or remain, as it was necessary that both acts should concur to establish a breach. 64 N. E. 903, affg 48 App. Div. G33, 62 v. deer, 10 Tex Civ. App. 252, 30 N. Y. Supp. 1141. S. W. 1108. 59. Evidence of minor being a OO. People ex rel. Meakin v. Eck- gambler and of ages of others by man, Hun. (N. Y.), '2i>!», IS N. Y. way of comparison inadmissible in Supp. 654. action for breach of condition as to <>t. Onx v. Thompson, 90 Tex. 468, selling to minors. Paynor v. IIolz- 73 S. W. 950. graf. 35 Tex. Civ. App. 233, 70 S. W. <*,2. c\>x v. Thompson, 00 Tex. 468, 820. 7.1 S. W. 950. An entry in the family Bible 63. State v. Curtis. 8 Tex. Civ. is n.if admissible to Bhow tin- age of App. 506, 28 S. W. 134. a child where both parents are in 6-4. Minter v. State, 33 Tex. Civ. court and testify as to his age. Smith App. 182, 76 S. W. 312. 406 BONDS. [§§ 353,354 And a bond conditioned that the licensee will not permit minors to enter and remain upon the premises is not violated where the entry of the minor was not for the purpose of buying or drinking liquor and his stay was only for a moment or two and for the purpose of aiding the licensee, as in such a case the law should be construed according to its spirit and meaning and not literally. 65 § 353. Sales on Sunday. A sale on Sunday which is not authorized by the license gen- erally operates as a breach of the bond. So the condition of a bond is violated by an unlawful sale on Sunday though made to a police officer who was sent to ascertain if the licensee was violating his bond by sales on Sunday and to buy of him if he was, it not appearing that the licensee was induced to sell by anything such officer did or said but rather was willing and desirous to sell. 68 But in a recent case in Kentucky in which a bond was conditioned that the licensee should not keep his saloon open on Sunday and the evidence showed that during the absence of the licensee his clerk made some unlawful sales of liquor on a single Sunday but that it had always been closed an Sundays prior thereto the court held that no case was made out and that a peremptory instruction should have been sustained. 07 § 354. In case of licenses to hotels. Licenses to hotels to sell liquor are often issued under statues which contain exceptions and conditions not applicable to the retail traffic in general. Thus such a license frequently permits a hotel keeper to sell liquor to guests in connection with their meals. But in this connection it is held that in an action upon a bond Permission to a minor to enter a 65. Douthit v. State, 98 Tex. 344, place is not a breach of a condition 83 S. W. 795. that the seller will not permit a minor 66. Tripp v. Planigan, 10 R. I. 128. to enter and remain upon the prem- 67. Jones v. Paducah (Ky. C. A. ises. Smith v. Geer, 10 Tox. Civ. App. 1909), 115 S. W. 801. 252, 30 S. W. 1108. § 355] BONDS. 407 given to procure a hotel liquor certificate a prima facie case U established l>v showing thai there was a sale of liquor on Sunday by the holder of the certificate and if the defendanl claims that the sale was within the exception contained in the Liquor ] Law as to sales to guests the burden restes upon him to 3how such fact. 08 Under the New York Tax Law in order for a hotel keeper to procure a license to sell liquors in connection with the conduct of the hotel there are certain requirements as to the rooms compliance with which is essential. Under this law it is decided that where the rooms do not comply with the requirements of the law in regard thereto it is no defense to an action on the bond that the hotelkeeper was told by a special excise agent after the certificate was issued that the law was sufficiently complied with. 69 Again in the case of a license to sell liquors in connection with a hotel a condition in the bond that the licensee will not permit the " premises to become disorderly " applies not to the bar alone but to the entire hotel and if the building, even with the excep- tion of the bar, is used for immoral purposes there is a breach of the condition. 70 § 355. Payment of fines and costs. Where a bond is conditioned that the obligor will pay all fines and costs that may be assessed against him for violations of the liquor laws it is held that he is not liable thereon for the pay- ment of tines and costs assessed against his bartender for an un- lawful sale made by him without the principal's knowledge or consent. 71 And where a bond is conditioned for the payment of a fine and costs and the licensee is prosecuted for a violation of the act and a fine and costs imposed which lie immediately ]>av<. 68. Cullinan v. O'Connor, 100 App. to. Cullman v. Fidelity & Casualty Div. (K. Y.) 142, 01 N. Y. Supp. Co., 84 App. Div. (N. V.) 292, 82 628. X. V. Supp. 695. 6». Cullinan v. O'Connor. 100 App. *1. State v. Leach, 17 Ind. App. Div. (X. Y.) 142, 91 X. Y. Supp. 174, 40 X. E. 549. 628. 408 BONDS. [§§ 356,357 it is held that an action will not subsequently lie on the bond aeainst him and the sureties thereon for the breach for the reason a that the amount of loss to the state has been paid and satisfied. 72 But in a case in Pennsylvania where a licensee was sentenced to pay a fine or undergo imprisonment, and he served the time of the sentence in prison it was held that he and his sureties were still liable upon the bond for the amount of the fine. 73 § 356. Acts by agent of licensee. An act by on agent of the licensee may be a violation of a con- dition of the bond as much as if done by the licensee he being said to be as it were a guardian of the law as to the premises upon which his business is transacted. 74 So it is no defense to an action for a breach of a bond that the act alleged as constituting the breach was done by an agent of the principal especially where the statute provides that any violation thereof by " any agent or other person acting for such dram-shop keeper " shall be deemed and taken as the act of the latter. 75 Thus a pharmacist and his surety on the bond become liable for the penalty prescribed therein for a sale in violation of the law under which it was issued though such violation was committed by a clerk of the pharmacist's in the later's absence. 76 § 357. False statements in application. Where a tax certificate is void from its inception because of false statements in the application as to material facts there is no liability on the part of the sureties ; as the object of the bond is to protect the state with reference to the conduct of business under 72. Rtate v. Estabrook, 20 Kans. Civ. App. 171, 102 S. W. 430. 739. See also Town Council v. 75. Greene County v. Wilhite, 29 Harbers, 6 Rich. L. (S. C.) 96. Mo App 459 7^. Brown v. Commonwealth, 114 7G. Cullinan v. Burkarrl, 03 App. iv. 5. S'o. 390; Edgar v. State, 46 Tex. 1003. Pa. St. 335, 6 Atl. 152. 74. OTlinn v. State, 66 Miss. 7, Div. (N. Y.) 31, 86 N. Y. Supp. §§ 358,359] BONDS. 409 a legal certificate and not againsl the fraud of the principal in securing it. 77 § 358. Surety not liable after surrender of certificate. The provision of the New York Liquor Tax Law which pro- hibits the return of the rebate upon a surrendered certificate has no bearing upon the liability upon the bond, given to procure such certificate. The surety is obligated as to the conduct of the prem- ises and violations of the law during the time the certificate is held and his liability terminates with the surrender of the certifi- cate. Therefore an action to recover the penalty of a bond given upon the procurement of a liquor tax certificate for a violation of the law after the certificate has been surrendered is not maintain- able. 78 § 359. Conditions not required by law. Where the bond is required to be executed in accordance with the statute a surety cannot escape liability on the ground that it is defective in that it contains conditions in addition to those im- posed by the statute under which it is executed, where such bond has been accepted and acted upon and rights conferred by reason of its delivery. Such additional provisions will be regarded as of no effect. 79 77. Lyman v. Kane, 57 App. Div. v. Schermerhorn. 167 X. V. 113, 60 (N. Y.) 549, 67 N'. V. Supp. UK;.-,, N. E. 324. off:/ 53 App. Div. 32. r,:, citing Lyman v. Schermerhorn, 53 N. Y. Supp. 538. App. Div. (X. Y.t 32, c,.-, X. Y. Supp. 78. Lyman v. Cheever, 168 N. Y. 538. See also Lyman v. Mead, 56 43, 60 X. E. L047, rev'g 52 App. Div. App. Div. (N. Y.) 5*2. (17 N. Y. 635, 66 X. Y. Supp. 1136 and dis- Supp. 254. tii),u r 'iisliiii'_ r People v. Lyman, 156 A surety in the absence of knowl- X. Y. 407, 50 X. K. 1112. edge is nut liable for sales under a 7f>. Lyman v. Brucker, 26 Misc. R. certificate given upon an application (X*. Y.) 594, 56 X. Y. Supp. 767; falsely stating that applicant bad Walker v. Holtzclaw, 57 S. C. 450. 35 never* been convicted of a felony as S. E. 7r.4 : Meador v. Adams, 33 Tex. the surety dues imt guarantee the Civ. App. 167, 76 S. W. 238; com- truth of such statement. See Lyman pare Crosby v. Snow, 16 Me. 121. 410 BONDS. [§§ 360,361 § 360. Liability for judgment. In a suit against the sureties to recover the amount of a judg- ment against the principal for damages they can only show that the judgment was not rendered by a court of competent juris- diction or that it was used for fraud cr collusion and they cannot retry the original suit upon the merits. 80 And it has been decided that the surety is conclusively bound by the judgment in such suit even though he was not a party to it and had no notice of it. 81 § 361. Bond only binding as to place named. Tho bond is only binding on the sureties for a breach of such conditions as occur at the place named in the bond or in the li- cense which the bond was given to procure. 82 So in New York it is decided that a bond given to secure the observance of the Liquor Tax Law by one to whom a certificate is issued secures only the observance of the law on the premises for which the license is issued, and there can be no recovery against the surety because the principal violated the law in other localities. 83 But the liability on a bond for violations of law occurring at the place for which the license was issued is not affected by a temporary removal of the business to another place without a transfer being legally made. 84 80. Clinton v. Laning, 73 Mich. scribe the place where the business 284, 41 N. W. 424 ; compare Margoley is to be conducted it is never - v. Commonwealth, 3 Mich. (Ky.) theless valid, there being nothing in 405. the statute requiring such a descrip- 81. Mount Pleasant v. Greenlee, 03 tion, though it would probably be bet- \V. Va. 207, 00 S. E. 601, citing ter that such description should be Brandt on Suretyship & Guaranty, inserted. O'Brien County v. Mahon, § 802. 120 Iowa 530, 102 N. W. 446. Ex- s — O'Banion v. De Garmo, 121 amine Douthit v. State, 98 Tex. 344, Iowa 139, 96 N. W. 73!). citing Carter 83 S. W. 795. v. Nicol, 116 Iowa 519, 90 N. W. 352; S3. Clement v. Smith. 128 App. Soffroi v. Cobun, 32 Tex. Civ. App. Div. (N. Y.) 859. 113 N. Y. Supp. 55. 75. 73 S. W. 828. 84. McLeod V. State, 33 Tex. Civ. Though the bond does not de- App. 170, 76 S. W. 216. §§362,363] B0NDS - in § 362. Release of liability — discharge of sureties — collateral agreement. A release of liability on a bond by officials having no authority to so act is of no effect. 86 And the sureties upon a bond are liable for any breach occurring during the period for which it was given and cannot discharge themselves from liability by removing from the corporation within which the business is carried on or by a notice to the principal from the official with whom the bond was filed to file a new bond and in the meantime to discontinue busi- ness. 86 Again a statute which contains various provisions as to bonds generally and which gives by one of its provisions a right to a surety to cancel a bond upon a certain notice does not operate to confer a right to a surety upon a liquor dealer's bond given under another statute to cancel his bond where the former statute contains an exception as to bonds otherwise specially provided for. 87 And a surety cannot defeat recovery upon a bond by alleg- ing an agreement with a third person that the latter should add his name thereto as principal in the absence of any notice to the obligee of such alleged agreement. 88 § 363. Actions upon — generally. Where the statute under which a bond is given provides the remedy for a recovery thereon it is held that the specific remedy so provi - Commonwealth v. Thompson, 2 47 N. W. 243. Cray (Mass.) 83, holding that where 87. Fidelity & Deposit Co. v. Jen- the statute provided that .scire facias ness, 138 Iowa 725, 116 N. W. 709. should be issued an action on con- 88. Jacobs v. Hogan, 73 Conn. 740, tract could not be brought. 49 Atl. 202. But see Anderson v. Commonwealth, Oral promise of tie principal 105 Ya. 533, 54 S. 1". 305, holding in a bond to repay the surety the that the mere giving of the right to amount of a judgment entered against proceed by si ir< facias on a bond does held not enforceable. Gorham v. not exclude other remedies or forms 412 BONDS. [§ 3G3 not to be limited to the bringing of a single action but it is de- cided that successive actions may be brought upon a bond until it is exhausted either by suits in behalf of the state or by parties aggrieved or by both. 90 And a recovery may be had from the sureties without first exhausting the property of the principal. 91 But where an action has been brought on a bond and it has been determined that there can be no recovery, there can be none against the dealer individually. 92 The action upon a bond is not a criminal action either in form or substance, 93 and in New York is held to be upon a contract obligation and not one to recover a penalty or forfeiture imposed by statute. 94 In Texas however it has been decided that the liability is a statutory and not a con- tractual one and that the suit is on the bond not as the foundation or evidence of the liability, but merely as security for its en- forcement. 95 In an ordinary action on the bond judgment may of action to enforce the collection of its penalty. An action of debt as well as scire facias may be brought on a liquor dealer's bond. State v. Walker, 56 N. H. 176. The action on a pharmacist's bond is on contract to recover damages for breach of its conditions and the amount of the damages are fixed and liquidated by the agree- ment itself. Clement v. Dwight (N. Y. App. Div. 1910), 121 N. Y. Supp. 788, citing Cullman v. Burkard, 93 App. Div. (N. Y.) 31, 86 N. Y. Supp. 1003; Lyman v. Shenandoah Social Club, 39 App. Div. (N. Y.) 450, 57 N. Y. Supp. 372; Lyman v. Perl- mutter, 166 N. Y. 410, 60 N. E. 21. f>o. Douthit v. State, 98 Tex. 344, 83 S. W. 795. 91. O'Brien County v. Mahon, 126 Iowa 539, 102 N. W. 446. u-2. Carter v. Nicol, 116 Iowa 519, 90 N. W. 352. 93. Lyman v. Shenandoah Social Club, 39 App. Div. (N. Y.) 459, 57 N. Y. Supp. 372. 94. Cullinan v. Burkard, 93 App. Div. (N. Y.) 31, 86 N. Y. Supp. 1003. 95. Hillman v. Gallagher (Tex. Civ. App. 1909), 120 S. W. 505. Compare State v. Williams, 10 Tex. Civ. App. 346, 30 S. W. 477, holding that where a bond has been executed under, and in accordance with, in- toxicating liquor laws in force at the time of its execution and liabilty has been incurred thereunder such lia- bility becomes one of contract and is not impaired by the passage of a sub- sequent statute. Is an action for a debt.— An action on a bond to recover for un- lawful sales to a minor is one for a " debt " and is barred by the provi- sions of an act that an action for a debt not evidenced in writing must be brought within a certain period of time. Hillman v. Gallagher (Tex. Civ. App. 1909), 120 S. W. 505. BONDS. 413 § 3G4] be rendered against the sureties alone but under the provisions of a statute it may be necessary to include the principal in the judgment. 90 § 364. Parties to actions on. Where the statute designates what officers shall bring an action upon a bond it must be brought by those named. 97 A bond to a person by name followed by a statements of the capacity in which he acts may be sued upon by him or his successors in office though the latter are not named in the bond. 98 And an action may by virtue of a statute be maintained by a citizen of the county in the name of the state for a violation thereof. 99 But in a suit against 96. Commonwealth v. Stringer, 78 Ky. 56. That the principal is not a necessary party to an action on a bond conditioned to pay all damages re- sulting from the sale of liquor. See Knott v. Peterson, 125 Iowa 404, 101 X. W. 173. 97. People v. Groat, 22 Hun (N. Y.), 104. Bond not payable as statute provides. — Where the object of mak- ing a bond payable to the state is that suit may be brought in the name of the state for the use of the county if it is not so payable the state has no interest in a suit thereon either as beneficiary, trustee or otherwise. State v. Vinson, 5 Tex. Civ. App. 315, 23 S. W. 807. And in an early case in Nebraska where a bond was made to a city, in- stead .if t'> the county, and contained no provision for the payment of all damages winch might be adjudgi d against the licensed parties as pro- vided in the statute, BUCh bond was held to be a nullity and it was de- clared that no action for a breach of its conditions could be maintained thereon. Sexson v. Kelley, 3 Neb. 104. But in a later case in this state it is held that a bond given to the vil- lage instead of the state is not for that reason invalid and that a wife may maintain an action thereon for loss of means of support in conse- quence of sales to her husband, the bond not being for the use of the state but for persons who may sus- tain injuries by reason of such sales, and there being no provision in the statute that the bond will be void if another obligee than the state is named therein. Thomas v. Hinkley. 19 Neb. 324, 27 N. W. 231. 9S. Granger v. llayden, 17 R. I. 170. 20 Atl. S33. A bond payable to " the City Treasurer of the city of Providence " has been held sufficient though his name was ih.i inserted. Tripp v. Norton, 10 P.. I. 125. See also Red- path v. Nottingham, :> Blachf. dnd.i 207. '■>'■>. State v. Mart land. 71 Iowa 543, 32 N. W. 485. 414 BONDS. [§ 365 a licensed saloon keeper and the surety in his bond, one not a party to the bond cannot properly be joined as a party defendant. 1 § 365. Pleading. Where by statute it is essential to render a bond enforceable that it be both approved and filed the complaint in an action thereon should allege the approval and filing. 2 In alleging breaches of the bond the petition need not where there are several counts for a breach of the same condition set out the condition in full in each count but it is sufficient to set it out in full in the first and make appropriate reference thereto in the successive counts. 3 And where several breaches are assigned, one of which is good, a demurrer to the whole declaration for the insufficiency of the breaches assigned must be overruled. 4 But a declaration which charges illegal sales at other places than that specified in the license states no cause of action against the sureties on the bond, as the lia- bility upon the bond is confined to sales made at the place licensed. 5 And where a bond is conditioned that the holder of a tax certifi- cate will not " while the business for which such liquor tax certifi- cate is given shall be carried on " violate any provisions of the Liquor Tax Law, a complaint against the surety should allege the specific time when the violations in question occurred or that they 1. Sullivan v. Radzuweit, 82 Neb. of a bond is an allegation of its due 657, 118 N. W. 571. delivery. Jacobs v. Hogan, 73 Conn. 2. A declaration averring that a 740, 49 Atl. 202. bond was duly delivered to the county 3. Moniteau County v. Bechtle, 123 treasurer of the proper county, and Mo. App. 073, 100 S. W. 1107. had thereon endorsed, at the time of Sufficiency of complaint or peti- such delivery, the approval of the tion in action on bond. See Maier v. proper village board, and was by the State, 2 Tex. Civ. App. 29G, 21 S. W. iirer duly filed in his office suffi- 974; Jones v. Sales, 25 Iowa 25. eiently alleges the approval and filing 4. Redpath v. Nottingham, 5 of the bond by the proper authorities. Blackf . ( Ind. ) 207. Anthony v. Krey, 70 Mich. 629, 38 5. Adams v. Miller, 81 Miss. 613, X. VV. 603. 33 So. 489. An allegation of " execution " §§ 366,367] B0NDS - ±15 occured while the business for which the certificate was given was being carried on and if it fails to do so i1 i- d< murrable. 8 § 366. Evidence in action on. Before an aggrieved person is entitled to recover on a liquor dealer's bond it is held essential to show that a license has been issued to the dealer. 7 And the burden of proof rests upon the plaintifr in an action on such a bond and before he can r< cover he must establish all the facts necessary to his recovery by a pre- ponderance of the evidence. 8 And in this connection it is decided that a record showing a plea of guilty to an indictment for the same violation of law as is alleged as a breach and the sentence to pay a fine is prima facie evidence of the breach complained of in an action against the surety. 9 § 367. Right to question validity of bond. The principle that when a bond is voluntarily entered into and the principal enjoys the benefits it was intended to secure and a 1. reach occurs it is then too late to question its validity, the parties being tin n estopped, to avail themselves of this defense, is held to apply to liquor bonds. 10 So the sureties on the bond are not re- «• Lyman v. Siebert, 31 Misc. R. Signing of Lond.— Where the IN. Y.) 2s.-), 65 X. Y. Supp. 367. sureties have duly executed the re- 7. Hillman v. Gallagher (Tex. Civ. quired bond and it has been accepted App. 1909), 120 S. W. 505. and approved by the proper otiicer or 8. Allen v. Houck & Dieter Co. officers, the sureties cannot escape lia- (Tex. Civ. App. 1906), 92 S. W. 993. bility on the ground that the bond !». Albrechl v. State, 62 Miss. 516. was not signed by the principal. See Webbs v. Stale. Cold. (Tenn.) North v. Barringer, 147 End. J-M. 46 L gg. N. E. 531. to. People ex rel. Meakin v. Eck- And it is no defense thai a bond man, 63 Eun (N. VA, 209, L8 \. Y. was signed in the partnership name Supp. 654; Mount Pleasanl v. Green- by one of the parties without any Ire. 63 W. Va. 207, 60 S. E. 601. authority under seal from his co- Want of seal.— The sureties upon partners where a plea of non est a bond cannot defeat a recovery factum, verified by oath as the stat- thereon by alleging a want of seal. ute requires has not been tiled. People v.* Groat, 22 Hun (N. Y.), Greene County v. Wilhite. 29 Mo. 164. A PP- 459 - 416 BONDS. [§ 367 lieved from liability by the fact that the statutory affidavits are not annexed thereto, as it is their duty to see that the required affi- davits are so annexed and they cannot set up their own neglect as a defense. 11 And it is decided that as against the licensee and the sureties upon his bond a license will be considered as issued in conformity to law and neither he nor the sureties will be per- mitted in an action on the bond to deny the validity of the license. 12 But where a bond was executed under the mulct law, when in fact it was not required because the principal was not engaged in the liquor business under that law it was held that it was not rendered valid by a subsequent law making the mulct law applicable to the principal in the bond. 13 11. Clinton v. Laning, 73 Mich. Compare Lyman v. Kane, 57 App. 284, 41 N. W. 424. Div. (N. Y.) 549, 67 N. Y. Supp. 12. Schullherr v. State, 68 Miss. 1065, holding that it is essential to 227 8 So. 328. the liability of the sureties on a bond See also State v. Golding, 28 Ind. that the license or certificate in con- App. 233, 62 N. E. 502, holding that nection with which it is given is a defendants cannot set up as a defense valid one. to an action on a bond that it was 13. Gorman v. Williams, 117 Iowa void because the license was issued to 560, 91 N. W. 819. them jointly and was void. § 3G8] LOCAL OPTION LAWS GENERALLY. 417 CHAPTER XVI. LOCAL OPTION LAWS GENERALLY. Section 3G8. Local option laws — constitutionality of generally. 369. Same subject — not a taking of property. 370. Same subject — not special or class legislation — uniform and general. 371. Same subject — not a delegation of legislative power. 372. Local option laws — construction of generally. 373. Constitutional provisions as to. 374. Local option laws as repealing prior law. 375. Local option law merely suspends prior laws. 376. Effect of adoption on license laws. 377. Effect of adoption — resident of local option territory may pur- chase in wet territory for own use. 378. Binding effect of vote on entire subdivision. 379. Same subject — where boundaries changed. 380. Statement of consent — Iowa. Sec. 368. Local option laws — constitutionality of generally. In many states the legislatures instead of prohibiting or licens- ing the traffic for the entire state have passed general laws in reaped thereto and authorized certain designated political subdi- visions of the state such as counties, parishes, towns or cities to determine each for itself by popular vote whether such traffic may be carried on within its limits. Laws of this character have been vigorously assailed in the courts on various grounds which we will consider in the subsequenl sections as being unconstitutional but as a general rule aside from a few early decisions their con- stitutionality has been sustained. 1 This is a matter of mere police 1. Busch & Co. v. Webb, 122 Fed. United States.— Weil v. Calhoun, 855. - r ' Fed. S(;:> - 418 LOCAL OPTION LAWS GENERALLY. [§ 3G8 regulation and a proper one for the submission to the people of a locality even such as a municipality as it is only allowing powers Connecticut. — State v. Wilcox, 42 Conn. 304, 19 Am. Rep. 536. Florida. — Hallbeek v. State, (1909), 49 So. 153. Georgia. — Barnesville v. Means, 128 Ga. 197, 57 S. E. 422; Smith v. State, 112 Ga. 291, 37 S. E. 441; Caldwell v. Barrett, 73 Ga. 604. Iotca. — State v. Forkner, 94 Iowa 1, 62 N. W. 683, 28 L. R. A. 206. Kentucky. — Stickrod v. Common- wealth, 86 Ky. 285, 5 S. W. 580, cit- ing Commonwealth v. Weller, 14 Bush 218; Sarris v. Commonwealth, 83 Ky. 327; See also Gayle v. Owen County Court, 83 Ky. 61. Louisiana. — Garrett v. Mayor, 47 La. Am. 618, 17 So. 238. Maryland. — Price v. Liquor License Commissioners, 98 Md. 346, 57 Atl. 215; Fell v. State, 42 Md. 71, 20 Am. Rep. 83. Massachusetts. — Commonwealth v. Dean, 110 Mass. 357. Michigan. — Feek v. Township Board, 82 Mich. 393, 47 N. W. 37, 10 L. R. A. 69. Minnesota. — State v. Johnson, 86 Minn. 121, 90 N. W. 121. Missouri. — State v. Campbell, 214 Mo. 362, 113 S. W. 1081; Ex parte Handler, 176 Mo. 383; 75 S. W. 920. citing State v. Pond, 93 Mo. 606, 6 S. W. 469; Ex parte Swann, 96 Mo. 44, 9 S. W. 10: Ex parte Mitchell, 104 Mo. 121, 16 S. W. 118; State v. Dillard Moore. 107 Mo. 78, 16 S. W. 937: State v. Searcy, 111 Mo. 236, 20 S. W. 186; State v. Watts, 111 Mo. 554, 20 S. W. 237; State v. Wingfield; 115 Mo. 428, 22 S. W. 363; Warrensburgh v. McHugh, 122 Mo. 649, 27 S. W. 523. Montana. — Tn re O'Brien, 29 Mont. 530, 75 Pae. 200. Nebraska. — Hunzinger v. State, 39 Neb. 653, 58 N. W. 194. New Jersey. — State v. Court of Common Pleas, 36 N. J. L. 72. Ohio. — Gordon v. State, 46 Ohio St. 607, 23 N. E. 63, 6 L. R. A. 749. Oregon. — Baxter v. State, 49 Oreg. 353, 88 Pac. 677, 89 Pac. 369. Pennsylvania. — Locke's Appeal, 72 Pa. St. 491, 13 Am. Rep. 716. South Dakota. — State v. Barker, 19 S. D. 1, 101 N. W. 1078. Texas. — Hoover v. Thomas, 35 Tex. Civ. App. 535, 80 S. W. 859; Bow- man v. State. 38 Tex. Cr. 14, 40 S. W. 796, 41 S. W. 635 ; Sweeney v. Webb, 33 Tex. Civ. 324, 76 S. W. 766; Steele v. State, 19 Tex. App. 425; Holley v. State, 14 Tex. App. 505. Vermont, — State v. Seampini, 77 Vt, 92. 59 Atl. 201 ; State v. Parker, 26 Vt. 357. Virginia. — Willis v. Kalmbach, 109 Va. 475, 64 S. E. 342; Savage v. Commonwealth, 84 Va. 619, 5 S. E. 565. Contra examine Santo v. State, 2 Iowa 165; Ex parte Wall, 48 Cal. 279, 17 Am. Rep. 425; McGonnell's Li- cense, 24 Pa. Super. Ct. 642. A provision in a village char- ter providing for the submission of the question license or no license to a vote of the electors is not un- constitutional as that question re- laics to a local regulation which it is competent for the legislature to submit to the people of the district. Gloversdale v. Howell. 70 N. Y. 287. W^ord municipality applies to hamlets. — Tn Ohio the statute pro- viding for an election in any munici- pality is held to apply to hamlets as the same existed prior to the adop- tion of the municipal code. Carey v. § 308] LOCAL OPTION LAWS GENERALLY. 410 which are less extensive than those which a municipal charter might confer. 2 Furthermore the people of one locality may under the conditions surrounding them feel the need of a law which differs from that prevailing in another locality and it is in recog- nition of this fact that the legislatures of many Btates have there- fore passed laws of this character/ 5 Such an enactment does State, 70 Ohio St. 121, 70 N. E. 955. Provisions exempting sales by druggists. — A provision in a local option law by which sales by drug- gists for certain purposes and under certain conditions are exempted from the operation of the law is valid as it is said such sales do not partake of the nature of the saloon business and it has always been regarded as proper to exempt them from the oper- ation of a dramshop license or pro- hibitory laws. People v. McBride, 234 111. 146, 84 N. E. 865. In Arkansas an order of the country court which is prohibitory of the sale of liquor remains in force until upon a petition of a majority of the adult inhabitants of such ter- ritory the county court sets aside the order and permits the sale Kettern v. State, 72 Ark. 90, 78 S. W. 758. In this state it has been provided by a statute in the nature of a local option law provided that upon peti- tion a majority of the adult inhabi- tants within three miles of any school house, academy, college, university <>r other institution or of any church shall desire to prohibit the sale of liquors in such district, the county court shall make an order to that effect. Bridewell v. Ward, 72 Ark. 187, 79 S. W. 762. An inhabitant under this law is one who has a fixed place with no intention of removing elesewhere. Wilson v. Lawrence, 70 Ark. .">!."). 69 S. W. 570. And in this state it is decided that one who appeared in the probate court and asked thai an order pro- hibiting the sale of liquor within a certain three mile territory be re- voked is not " aggrieved " if, with- out objection on his part, the court granted his petition and revoked such order, and therefore is not en- titled to appeal from such order of revocation. Phillips v. Goe, 85 Ark. 304, 108 S. W. 207. Sufficiency of description of school house in order putting into force prohibition within a certain distance thereof. See Lindley v. State (Ark. 1909), 120 S. W. 987. In South Dakota under the Rev. Pol. Code, § 2837 as amended by Law 1905, p. 180, c. 124. an affirmative vote in favor of license is essential to the right to sell liquors in any mu- nicipality. State v. Stakke (S. D. puts), 118 N. W. 703. What is a political subdivi- sion. — A commissioner's precinct is a political subdivision under the Texas statute. Cofield v. Britton (Tex. Civ. App. 1908), 109 S. W. 493. But an election precinct is not a political subdivision of a county. /' i parte Pollard, 51 Tex. Gr. 488,103 S. W. 878. And a school district is not a politi- cal subdivision for the purpose of adopting local option. Ex parte 11 aney. .'.I Tex. Cr. 634, 103 S. W. 1155. i.'. State v. Cooke. 21 Minn. 217. 31 Am. Rep. 344. 3. Feek v. Township Board of 420 LOCAL OPTION LAWS GENERALLY. [§ 359 not contravene the scheme of a constitutional provision as to schools that " all moneys received for licenses granted under the general laws of the state for the sale of intoxicating liquors or keeping dramshops " shall be devoted to their support. 4 And though a provision in a local option law restricting the sale of wine to such as is manufactured from the pure juice of the grape " cultivated in this state " may be invalid as a discrimination in favor of domestic wines it will not affect the provisions of the statute as a whole. 5 In Florida it has been decided that a section of a statute providing for the prosecution of those selling liquor in counties or precincts voting against such sale is not unconstitu- tional because of the omission of the word " intoxicating " before the word " liquors " therein. 6 § 369. Same subject — not a taking of property. A local option law does not take, damage or destroy private property for public use within the meaning of the constitutional provision forbidding such a taking. 7 So the legislature may con- fer upon the counties of the state the power to prohibit by local option the sale of intoxicating liquors within the county and such an act is not in violation of the United States constitution as de- priving a person of his property without due process of law nor does it conflict with any act of Congress. 8 And it is decided that the fact that a local option law may diminish the value of property, such as a brewery and its fixtures resulting from the inability of the owners to adjust their old business to the new law is damnum absque injuria it being declared that such a law does not take or Bloominpdalo, 82 Mich. 303, 47 N. «• Hallbeck v. State (Fla. 1909), W. 37, 10 L. R. A. C><). 49 So. 153. 4. Lemon v. Peyton, 64 Miss. 161, *• Ex parte Lynn, 19 Tex. App. 8 So. 2nr>. 293, followed in Ex parte Kennedy, 5. Strvons v. State, 61 Ohio St. 23 Tex App. 77, 3 S. W. 114. 597, 56 N. E. 478. 8< Territory v. O'Connor, 5 Dak. 397, 3 L. R. A. 355. § ;>7<)j LOCAL OPTION LAWS GENERALLY. 421 damage their property for the use of the public bu1 only prevents them from taking or damaging the public for their use. 9 § 370. Same subject not special or class legislation — uniform and general. Laws of this nature have frequently been assailed on the ground that they are not uniform in operation and arc in the nature of special, local, or class legislation, in that by virtue of them a different law may prevail in one locality than prevails in another. Courts however have not looked with favor upon this contention and the rule prevails that where such an act operates alike through- out the state it is not legislation of such a character. Its uni- formity under such circumstances is not destroyed because one or more of the subdivisions designated may avail itself of its provis- ions as every subdivision may do so if it chooses. 10 A constitu- tional provision that " the legislature shall not pass private, local or special laws regulating the internal affairs of towns and counties " is not intended to secure uniformity in the exercise of delegated police powers but to forbid the passing of a law vesting in one town or county a power of local government not granted O. Menken v. City of Atlanta, 78 South Dakota. — State ex rel. Ga. 668, 2 S. E. 559. See also Ex Crothers v. Barber, 19 S. D. 1, 101 parte Swann, 96 Mo. 44. it S. W. 10. X. W. 1078. lo. Dakota. — Territory v. O'Connor, Texas. — Sweeney v. Webb, •'>:> Tex. 5 Dak. .397, 41 X. W. 746, 3 L. R. A. Civ. App. 324, 76 S. W. 766. 355. Compare Maize v. State, 4 [nd. ."42. Georgia. — Smith v. State. 112 Ga. Where sole power was given to 291, 37 S. K. 441. the commissioners in each county Minnesota. — State v. Johnson, 86 to granl licenses it was decided that Minn. 121, 90 X. W. 161. the fad that the commissioners in the Missouri. — Ex parte Handler, 17G differenl counties might entertain dif- Mo. 383, 75 8. W. 920; Ex parte, ferent views in relation to the ex- Swann. 96 Mo. 4 1. 9 S. W. 10; State pediency <>f granting gen- v. Pond. 93 Mo. cm;. 6 S. W. 169. .Tilly and thereby cause the statute Montana. I ,i re O'Brien, 29 Mont. to operate differently in different 530, 75 Pac. 200. parts of the state did noi affect its Ohio.— Gordon v. State. 40 Ohio St. validity. Bancroft v. Dumas, 21 Vt. 607, 23 X. E. 63, L. K. A. 749. 456. 422 LOCAL OPTION LAWS GENERALLY. [§ 371 to another. 11 So the fact that a different penalty is imposed for a violation of the local option law in the locality in which it is adopted than is imposed for the same violation of the general law in other sections of the state does not render it objectionable as not operating upon every citizen alike, it being sufficient if it operates equally upon all who in all parts of the state come under the same circumstances and conditions. 12 And it has been decided that a statute whose provisions are applicable to counties having a certain population is not obnoxious as class or special legislation because at the time there is only one county to which the law applies. 13 § 371. Same subject — not a delegation of legislative power. While the legislature may not delegate to the people the au- thority to make the law, or to say what kind of a restrictive meas- ure shall be adopted, or propose a law and submit it to the vote of the people to say whether or not it shall in fact be enacted into law, it may pass an act which takes effect only upon the happen- ing of a contingency such as a favorable vote of the people. 14 Therefore the legislature may pass a local option law by which it is left to the voters of each subdivision to create the contingency upon which such law takes effect and it will not be regarded as unconstitutional as being a delegation of legislative power. 15 If 11. Paul v. Gloucester County, 50 15. Dakota. — Territory v. O'Con- N. J. L. 585, 15 Atl. 272, 1 L. R. A. nor, 5 Dak. 397, 41 N. W. 746, 3 86n. L. R. A. 355. 12. Ex parte Handler, 176 Mo. 383, Kentucky. — Commonwealth v. Wel- 75 S. W. 920, citing Gordon v. State, ler, 14 Bush. 218, 29 Am. Rep. 407. 46 Ohio St. 607, 23 N. E. 63. Michigan.— People v. Collins, 3 13. Hunzinger v. State, 39 Neb. Mich. 343. 653, 58 N. W. 194. Missouri.— Ex parte Swann, 96 Mo. 14. In re O'Brien, 29 Mont. 530, 44, 9 S. W. 10. 536, 75 Pac. 200. Per Halloway, J., Montana. In re O'Brien, 29 Mont, in construing a local option law. 530, 75 Pac. 200. See also Feek v. Township Board New Jersey. — Paul v. Gloucester of Bloomingdale, 82 Mich. 393, 47 County, 50 N. J. L. 585, 15 Atl. 272, X. W. 37, 10 L. R. A. 69; State v. 1 L. R. A. 86n. Pond, 93 Mo. 606, 6 S. W. 469. 371] LOCAL OPTION LAWS GENERALLY. }_>:; a local option law is complete in all its parts it i- an expression of legislative will none the Less that the contingency upon which it takes effect in any particular locality La mode to depend upon the favorable vote of the people of thai Locality. 16 An acl of this char- acter is not a submission to the people of the question of passing a Law. W the vote is againsl the sale it is the Law and nol the which is the declaration againsl it as the vote springs from the law and not the law from the vote. 17 So in one of the earlier cases in Kentucky it was said: " while the law making power cannot dele- gate to the people the right to assemble and frame such laws as may be deemed best for their own interests, and to adopt them by a popular vote, it is not inconsistent with our representative sys- tem of government to consult the popular will as to the propriety of a law already enacted." 1S So a provision in a law that if the majority of the legal voters in a county shall vote against the sale of intoxicating and brewed liquors no license shall be granted within the county for the sale thereof is not an unlawful delega- tion of power by the legislature. 19 And an act prohibiting the manufacture of such liquors and providing for a submission to the people for their approval or disapproval upon which it is to depend whether the act is to take effect upon a certain day or sub- sequently, is held not to be a delegation of legislative power to the people, the act being declared to be complete when it passed from the hands of the legislature, and requiring nothing to be added to or taken away from the provisions by the people. 20 And it has also been decided that an act to prohibit the sale of intoxi- Bouth Dakota. — State v. Barber, 10 530. 7:. Pac. 200. Per Halloway, J. S. D. 1, 101 \. W. 1078. 17 - sen,, v. Pond, 93 Mo. 006, 6 Virginia. — Savage v. Common- S. W. 169. wealth, 84 Va. 619, 5 S. E. 565. 1S - Commonwealth v. Weller, 14 Compare ex parte Wall, 48 Cal. Bush. (Ky.) 218, 29 Am. Rep. 407. 279, 17 Am. Rep. 125; Santo v. State, Per Pryor, C. J. 2 Iowa 165; State v. Weir, 33 Iowa !»• Paul v. Gloucester County, 50 134. N. J. L. 585, 15 Atl. 272, 1 L. R. A. 16. In re O'Brien, 29 Mont. 530, SOn. 424 LOCAL OPTION LAWS GENERALLY. [§ 372 eating liquors may be applied to a single comity, civil district or other described territory, and that its operation may be made to depend in each case upon the popular will expressed at the polls by voters immediately affected by it. 21 § 372. Local option laws— construction of generally. Every reasonable intendment is to be resolved in favor of the constitutionality of a local option law and before the court will pronounce a solemn enactment of the legislative assembly invalid such invalidity must be made manifest beyond a reasonable doubt. 22 And a proviso in a local option statute which is mean- ingless will not have the effect of rendering an entire section void where the remainder of the section is capable of a clear construc- tion and enforcement. 23 And, as in the case of other enactments, a repeal by implication is not favored. 24 So a later statute will not repeal a former one by implication when the two laws are not irre- 20. People v. Collins, 3 Mich. 343. 21. Stickrod v. Commonwealth, 86 Ky. 285, 5 S. W. 580, eiting Common- wealth v. Weller, 14 Bush. (Ky.) 218; Sarris v. Commonwealth, 83 Ky. 327. 22. in re O'Brien, 29 Mont. 530, 546, 75 Pac. 200. Per Halloway, J. A construction -which would lead to absurd results will not be adopted unless compelled by the lan- guage. State v. Turner (Mo. App. 1910), 12.", S. W. 531. Such statutes should receive a reasonable construction. — State v. Williams find. S. C. 1910), 90 N. E. 754. " Towns " does not include cities.— Where a local option law pro- the submission of the question to the voters of "towns and incorporated villages" it will not be construed as extendi]!'/ to cities. Kleppe v. Gard (Minn. 1909), 123 X. W. 665. Enforcement The enforcement law will not be ground of being Nirus v. Gilmore Pac. 79. 23. Ruhland v. not enjoined.— of a local option enjoined on the illegally adopted. (Ida. 1910), 107 Waterman (R. I. 1908), 71 Atl. 450, 1. The fact that a provision in a lo- cal option law is void will not ren- der the whole act void if such pro- vision is independent of and can be separated from the rest of the act ; which will be complete without it. Gillesby v. Board of Commissioners of Canton County ( Ida. S. C. 1910), 107 Pac. 71. 24. Snead v. State, 55 Tex. Cr. 583. 117 S. W. 983; State v. County Court (Oreg. 1909), 101 Pac. 907. An act changing the name of a township after it has adopted local option does not operate as a re- peal thereof. State v. Cooper, 101 N. C. 084, 8 S. E. 134. g ;;7; .j LOCAL OPTION LAWS GENERALLY. concilably inconsistent and can stand together as two statutes upon the same subject should be so construed thai they may stand if possible. 28 Again an act providing for the adoption of local option in counties of the state does not by implication apply to sales of liquors under judicial process in a county where the terms of such net have become applicable by virtue of an election pre- scribed by the act and such a sale is not a public nuisance which may be enjoined.- Where it is apparent from an act construing the entire act together that it was the intention of the legislature that to prohibit the granting of a license in a given territory a majority of the registered voters of the territory instead of a ma- jority of the votes should be against license, the act will be so construed. 27 In Texas the local option laws have been held to be strictly and essentially criminal laws and as such primarily sub- ject to the decisions of the criminal courts as to their validity and construction. 28 And it is also decided that being in its nature a penal law it should be strictly followed in all of the proceedings necessary to put it into operation as otherwise an order declaring it to be in force is void. 29 § 373. Constitutional provisions as to. In some states there are provisions in the constitution in re- spect to local option such as making it incumbent upon the legis- lature to pass some general law in regard thereto, 30 or securing 2r,. state v. Rinke (Mo. App. 27. Chalmers v. Funk. 76 Va. 717. 1909), 121 S. W. 159. - s - Commissioners Court v. Beall, In Missouri it is decided that the 98 Tex. 104, 81 S. W. 526. local opt inn law and the law regu- *>• Griffin v. Tinker (Tex. Civ. lating druggists and pharmacists may App. 1909), 119 S. W. 338. co-exist in the same territory. State BO. In Kentucky it has been de- v. McAnally (Mo. App. 1910), 125 S. at the fact that the constitu- W. 1174, citing Ex parte Swann, 96 tion makes it incumbenl on the Gen- Mo. 44, 9 S. W. 10; State v. Moore, era! Assemhly to provide a general 107 Mo. 78, 16 S. W. 937; State v. law on the subject of taking the Williams. 38 Mo. App. 37; State v. sense of the people as to whether liq- Bevans, 52 Mo. App. 130. uor shall be sold dees nol deprive the 20. Fears v. State, 102 Ga. 274, General Assembly of the power to 29 S. E. 463. permit or prohibit the sale of liquor 426 1. HAL OPTION LAWS GENERALLY. [§ 374 the right to have a local option law. And where the right to have local option is guaranteed by the constitution of a state to a county this right cannot be abrogated by a provision in the charter of a city within such county. Thus it was held that the right of a county to adopt local option, which right was so guaranteed, was uot affected by a provision in the charter of a city located in such county by which the city was given power to license and locate saloons within its limits. 31 § 374. Local option law as repealing prior laws. A local option is held to operate as a repeal of a prior law where the two are repugnant and cannot be reconciled. 32 So an act as to sale of domestic wines is held to be repealed by adoption of the local option law. 33 But in order that a local option law shall operate as a repeal of other special statutes in force it must have been adopted in the manner prescribed by statute. 34 And a gen- eral local option law does not repeal a prior special local option act where the two are not inconsistent and the repealing clause until such time as the sense of the people can be taken in the manner prescribed by the general law and that until that time it may pass such law as will authorize the sale of liq- uors in localities where prohibition laws have been in force or may pass a law prohibiting the sale in com- munities where the sale of liquors has been licensed. Brown v. Common- wealth, 08 Ky. 652, 34 S. W. 12. See also Commonwealth v. McCann, 123 Ky. 247, 9-1 S. W. 645, constru- ing the provision of the constitution declaring as follows: ''The General shall by general law, pro- vide a means whereby the sense of the people of any county, city, town, dis- trict or precinct may be taken as to wmether or not spirituous, vinous, or malt liquors shall be sold, bartered or loaned therein, or the sale thereof regulated. But nothing herein shall be construed to interfere with or to repeal any law in force relating to the sale or gift of such liquors." 31. Ex parte Elliott, 49 Tex. Cr. R. 108, 91 S. W. 570. 32. Commonwealth v. Jarvell, 9 Ky. Law Rep. 572, 5 S. W. 703; State v. Yervell, 63 Md. 120. In Kentucky it is decided that local acts were not repealed by the local option act but that with re- spect to the quantity that may be sold and the penalties for the viola- tion of the act the courts are gov- erned entirely by the local option law and not by the local or special acts. Burdette v. Board of Council of City of Danville (Ky. C. A. 1910), 125 S. W. 275. 33. Boldt v. State, 60 Ark. 600, 31 S. W. 460. & 375] LOCAL OPTION LAWS GENERALLY. ;_•; of the general act only provides for the repeal of laws in with it. 88 Again where a local option law excepts from its oper- ation localities where sales are prohibited by law the adoption of local option in a township located inside the distance from a church within which sales are prohibited by law does do1 operate to abrogate that law. 30 And a statute making it unlawful to sell liquors without a license is held to be neither repealed nor sus pended by the adoption of local option as it is unlawful to sell without a license whether local option prevails or not. 37 Nor will a local option law passed in pursuance of a constitutional pin- vision authorizing it nullify local option elections held prior to the adoption of such provision where it also provides that ''noth- ing herein shall be construed to interfere with or to repeal any law in force relating to the sale or gift of such liquor." :;s Again an amendment to a local option law requiring a report to he made by druggists of all sales of intoxicating liquors made by them and which docs not alter the prohibitory features of the older act, applies in counties where local option is in force without its being submitted to a vote of the people. 39 § 375. Local option law merely suspends prior laws. Although as we have stated in the preceding section there are some states in which it is declared that the adoption of local option in a particular locality operates as a repeal of prior inconsistent laws yet the general rule is that it does not operate as a repeal in .•n. Locke v. Commonwealth, 25 to a certain county which permits Ky. Law Rep. 7<;. 7» S. W. »•'"> t. either prohibition or the making of 35. McGruder v. State, 83 Ga. filG, sales docs nol repeal a prior general 10 S. E. 281. tnv tun. ■hiii;.;' the granting <>i licenses 3«. state v. Hollingsworth, 100 and making them lawful on certain N. C. 535, 6 S. E. 417. conditions. 37. State v. Smiley. K>1 X. C. 709, :!s - Stamper v. Commonwealth, 102 7 S. E. 004. See Bell v. State !H Ky. 3:!. 42 S. W. 915. Ga. 227, 18 S. E. 288, holding that •'»>• People v. Henwood, 123 Mich. a special local option law applicable 317. 82 X. W. 7a. 128 LOCAL OPTION LAWS GENERALLY. [§ 375 the strict sense of that word but rather operates as a suspension merely of such prior laws during the time that local option re- mains in force in that locality. 40 As is said in a case in Florida there is a material difference between a statute being repealed or suspended, in that a repeal removes the law entirely while though a law is suspended it still exists and has operation in every re- spect except wherein it is suspended. 41 So the right to exemption from consents is suspended by the adoption of a local option law and revives when the vote is reversed. 42 And in a case in Oregon it is said that a vote for prohibition does not operate as a suspen- sion of the provisions of a charter of a city in authorizing the issuance of licenses but is rather a limitation upon the city charter and the powers of the city within such territory. 43 And where an act providing for local option also contains a provision as to con- ducting the traffic in case the vote is against it such provisions are not to be regarded as repugnant but one will be regarded as sus- pended while the other is in force. 44 Where an election is illegal 40. Florida.— Cason v. State, 37 Texas.— Rathburn v. State, 88 Tex. Fla. 331, 20 So. 547; Butler v. State, 281, 31 S. W. 189; Gibson v. State, 25 Fla. 347, 6 So. 67. 34 Tex. Cr. 218, 29 S. W. 1085; Kerr Georgia.— Tatum v. State, 79 Ga. v. Mohr, 47 Tex. Civ. 1, 103 S. W. 176. 210. Indiana. — Garver v. State, 8 Blackf. If no provisions of repeal. — An 568. election resulting in a vote against Kentucky. — Commonwealth v. Hok, the sales of liquors operates to sus- 14 Bush 668 ; Young v. Common- pend a former law, where the act pro- wealth, 14 Bush 161. viding for local option contains no Michigan. — People v. Wade, 101 provisions repealing such law. Mich. 89, 59 X. W. 438. Hearn v. Brogan, 64 Miss. 334, 1 So. Mississippi. — Norton v. State, 65 246. Miss. 297, 3 So. 665; Winterton v. 41. Mernaugh v. City of Orlando, State, 65 Miss. 238, 3 So. 735, citing 41 Fla. 433, 27 So. 34. Per Marry. J. Hearn v. Brogan, 64 Miss. 334, 1 So. 42. People ex rel. Sandman v. 246. Brush, 41 Misc. R. (X. Y.) 56, S3 Missouri. — State v. C raves, 135 X 1 . Y. Supp. 607. Mo. App. 171. 115 S. W. 1054; Ex 43. Baxter v. State, 49 Oreg. 353, parte Swann, 96 Mo. 45. 9 S. W. 10; 88 Pac. 677, 89 Pae. 369. State v. Beam, 51 Mo. App. 368. 44. Price v. Liquor License Com- New York. — See Vallance v. King, missioners, 98 Md. 346, 57 Atl. 215. 3 Barb. 5 is. fi 370J LOCAL OPTION LAWS GENERALLY. 429 and void the law in such territory of course remains in force as it was prior to the election.'"' § 376. Effect of adoption on license laws. The rule that the adoption of local option in a certain locality operates as a suspension of prior inconsistent Laws applies to those laws which authorize and regulate the granting of licenses and where such a law has been adopted and has gone into effect there is no authority for the granting of a license in such locality din- ing the time that the law remains in force and consequently no sale can be authorized except when the statute makes certain ex- ceptions. 46 And it is no defense to an indictment for violating 45. Ex parte Cox, 28 Tex. App. 537, 13 S. W. 862. 46. Florida. — Bonacker v. State ex rel. McFarland, 42 Fla. 348, 29 So. 321. Georgia. — Turner v. Mayor, etc. of Forsyth, 78 Ga. G83, 3 S. E. 649. Louisiana. — State v. Laborde, 119 La. 410, 44 So. 15G; Parish v. Camp- bell, 106 La. 464, 31 So. 49. Maryland. — Temmick v. Owing, 70 Md. 246, 16 Atl. 719. Minnesota. — State v. Hanley, 25 Minn. 429. North Carolina. — State v. Smiley, 101 N. C 709, 7 S. E. 904. I'< nnsylvania. — Commonwealth v. Meller, 811 Pa. St. 127: Ranch v. Commonwealth, 78 Pa. St. 190. Ti.ru.s-. — Ex parte Lynn, 19 Tex. App. 293. A tax law is rendered inoperative in a county l>; the adoption of a lo- cal option law therein. Haas v. Remick, 31 Ohio C. C. 591. The court said: "The right to traffic in intoxicat- ing liquors is a common law righl possessed by the people — a property right, a lawful subject of taxation, and recognized as such in this state. To enforce payment of such tax in any such case against an individual, two facts must exist, viz., the right to carry on the business where lo- cated, and the ownership of such right in the party assessed; and when the state has lawfully abolished such right and ownership, how can it lawfully impose a tax thereon? The state, in the Dow law, recog- nized those rights, and heavily taxed the persons engaged in the exercise of those rights; but now. through the enforcement of the Rose law, it has abolished those rights in most of the state, and made their exercise a misdemeanor. We say the state has done this as the Rose law is a general law, applicable to the whole state, the state being composed of counties, and they are component parts of the state, and when the legislature authorized its constituent parts to abolish such right 3, and made the a criminal offense againsl itself, certainly the abolil ion o rights in any county i> in effect the act of, and binding in every respect upon the state. Suppose every county in the state 430 LOCAL OPTION LAWS GENERALLY. [§ 3JG the local option law that since the commission of the offense the was ' dry ' under the operation of the Rose law, where could the Dow law be in force and effect? Would not the Rose law render it inoper- ative and in ell'ect repeal it? And if hy would it not have the same effect now in the ' dry ' counties, al- though all are not ' dry.' In Ashtabula county at the time in question, and now, to engage in such traffic was and is a criminal offense against the state, and how is it pos- sible that an older law could also be in force and effect there, which recog- nized and permitted the right in the people to carry on such traffic by the imposition of a yearly tax. The statute expressly declares the tax is imposed upon the ' business of trafficking in spirituous, vinous, malt or other intoxicating liquors,' and hence it expressly recognizes the right to carry on such business, and is a permit to do it, and this is made more manifest by the provision in the statute that if the party does not begin the traffic until after the day the yearly tax is to be assessed under the statute, to wit, the fourth Mon- day in May, the tax is to be appor- tioned accordingly; as for instance, if the traffic is not begun until six months after the fourth Monday of May, the tax is to be but one-half of the yearly tax ; or, if such party be- gan the business at the beginning of the year, and pays the tax, and after- wards retires from the business be- fore the end of the year there shall be returned to him a proportionate share of such tax; but in no event shall the tax to be paid, or retained, be less than $200. It is apparent, therefore, that the statute permits, and makes it lawful for such person to engage in and carry on such traffic for the length of time for which he pays the tax. If, therefore, both these statutes are lawfully operative in a ' dry ' county, then the persons engaged in such traffic therein can be compelled to pay the tax and at the same time be prosecuted and fined for the sell- ing, as Doering was in this instance, and all of their liquors taken from them and confiscated. These statutes are, therefore, clearly in conflict and the latter one makes the former one inoperative in ' dry ' counties." Per Laubie, J. Under the North Carolina statute after the town has voted pro- hibition a liquor seller has only six months to close out his stock if his license remains so long in force. Mc- Intyre v. Asheville, 146 N. C. 475, 59 S. E. 1007. In Kentucky it is decided that where a person's license has not ex- pired when local option goes into ef- fect the law is not operative as to him until after the expiration thereof. Shehan v. Louisville & N. R. Co., 125 Ky. 478, 101 S. W. 380. Right of wholesalers to sell in local option district under Ky. act March 22, 1904, see New South Brew- ing & Ice Co. v. Commonwealth, 29 Ky. Law Rep. 87.3, 9G S. W. 805. Illegal sale — right to recover payment. — Where a sale of beer is made with knowledge that the pur- pose of the buyer is to retail the same in a local option district in viola- tion of the law and the seller aids in the sales and the moneys for the pay- ment of the liquor is to be derived from such illegal sales, it is decided that there can be no recovery. Dallas Brewery v. Holmes Bros. (Tex. Civ. App. 1908), 112 S. W. 122. The sale by a distiller to his partner of his interest in their dis- § 377] LOCAL OPTION LAWS GENERALLY. 431 district has voted in favor of the Bale of liquor. 47 But where by statute a person might sell mall liquor upon paymenl men privilege tax, a distinction being made between such liquors and vinous and spirituous liquors and a local option law pn -uch distinction a person by the paymenl of a privilege tax may .still sell malt liquors, and Deed nol obtain a license. 48 And in a re- cent case in Kentucky it is decided that though such a statute for- bids the sale of ki spirituous, vinous, or malt liquors " in a terri- tory in which local option has been adopted it is not violated by a sale of malt liquors which contains such a small percentage of alcohol that it may be drank in any quantity without having any intoxicating effect. 49 § 377. Effect of adoption — Resident of local option territory may purchase in wet territory for own use. As we have stated in one of the earlier sections though a state may prohibit the traffic in intoxicating liquors yet it can not pre- vent one from having such liquors in his possession for his own use. 50 And this principle applies to one who is a resident of a local option district. Such a person may either by himself or an agent go into territory where local option is not in force and bring such liquor into the local option district provided he keeps it for his own use. And if the purchase is made by duly appointed agents the latter will not be guilty of a violation of a statute for- bidding the "furnishing" of liquor in such territory. This con- clusion is reached in a recent case in Ohio in which it was held tillery is not a violation of the local menoed another election i< held does option law. Stamper v. Common- not repeal the prior election to the wealth, 31 Ky. Law Rep. 707. 103 S. extent that the prosecution should \Y -2Sf>. be midcr the later election. ■»7. Commonwealth v. Overly. 107 18. Boswell v. State, 70 Miss. 395, Ky. 1G9, 53 S. \Y. 36. See also 12 So. 440. Holmes v. State, 55 Tex. Cr. 331, 49. City of Bowling Green v. Mc- 116 S. W. 571, holding that the fact Millen, Ky. 1910), 122 S. \Y. 823. that after a prosecution under a CO. See § 85 herein, local option election has been com- 432 LOCAL OPTION LAWS GENERALLY. [§ 377 proper to charge the jury in substance that it was not a violation of the statute for a person in a " dry " county to go into a " wet " county to purchase liquor in any quantity for his own use, to be used as a beverage and that such a person may under this statute not only go into a " wet " county and purchase intoxicating liquor in any quantity, to be used as a beverage by himself in a " dry " county, but that he may do so by another, whom he has in good faith constituted his agent for that purpose. 51 51. State v. Lynch, 81 Ohio St. 173, 90 N. E. 935, 55 Ohio Law Bull. Supp. 75, followed in State v. Wirick, 81 Ohio St. 177, 90 N. E. 937. The court said per Davis, J. : " The prosecuting attorney excepted to the charge, and although the de- fendant was found guilty by the jury, and was sentenced by the court, the prosecuting attorney has brought the case here, as provided by Revised Statutes, Sections 7305, 730G, 7307, 7308, for an answer to the sole ques- tion, as stated by himself: 'Can a person in dry territory receive money from another, and go into wet terri- tory, purchase intoxicating liquors with the money, and deliver it to the person who furnishes the money, to be used by him as a beverage, and not be guilty of furnishing as the term is used in this statute?' The prosecuting attorney argues for a negative answer to this question ; and his argument, in brief, is this: that the word 'furnish' in its or- dinary and generally accepted meaning signifies to 'provide' or 'supply.' Yf't if we substitute either of these alleged equivalent words for the one used in the statute, the application of the statute to the facts of this case i- not made any clearer than when we consider it with the legislature's own chosen word, ' furnish.' In fact, the abstract meaning of words rarely af- ford- decisive aid in determining the construction of a document or a stat- ute. When attempting to arrive at the meaning and specific intent of a given phrase or sentence, we are gen- erally obliged to consider words in their concrete use, having regard to the general purpose which the drafts- man had in view, together with any other circumstances which may aid us in attaining his mental point of view. Now in the study of this statute (99 O. L. 35-38), and especially of its title and Section 2, which is di- rectly under review in this proceed- ing, it is very clear that it is aimed at the repression of " the evils result- ing from the traffic in intoxicating liquors," and the punishment of deal- ers conducting such traffic. The sig- nificant language of Section 2 is as follows : ' Whoever * * * violates any of the provisions of this act or in any manner directly or indirectly, sells, furnishes, or gives away or otherwise deals in any intoxicating liquors as a beverage,' etc. The stat- ute seeks to prohibit the traffic, or dealing, in intoxicating liquors in counties in which a majority of the electors have voted ' in favor of pro- hibiting the sale of intoxicating liq- uors ; ' and therefore it provides that not only those who sell intoxicating liquors, but also those who furnish, give away, or otherwise deal in them in evasion of the law against the sale of liquors, shall likewise be guilty of § 378] LOCAL OPTION laws GENERALLY. j:;:; § 378. Binding effect of vote on entire subdivision. Where by a vote the sale of liquors has been prohibited in a certain locality a sub-division thereof cannol by a separate vote under the same law permit the sale of liquor within the Limits of tho subdivision. 5 - And the result is binding upon all within the a misdemeanor. Tliis was the con- struction, and no more, which was given to the word ' furnish ' in State v. Munson, 25 Ohio St., 381; State v. Freeman, 27 Vt. 520; and People v. Neumann, 85 Mich. 98, 48 N. W. 290, cited by the prosecuting at- torney. For the foregoing reasons we are unable to accept the construction of the statute, which is claimed, on the part of the state to justify its con- tention that the charge of the court in this case was erroneous; and we may add a few other considerations leading to the same conclusion. Admittedly Bennett could have gone in person to another county where the traffic in intoxicating liquors was not prohibited, and there could have bought liquors for his own use in any quantity and could have transported them to the county of his residence, where the traffic was prohibited, and could have there consumed them. We frankly confess that we are entirely unable to understand why one may not lawfully do by the agency of an- other, thai which lie may lawfully do himself. The prosecuting attorney contends thai the maxim. 'Qui focit per (ilium, fat-it per se,' cannol apply in criminal law. Why not, in a case like this? There can be no aiders or abettors where there is no crime. When the liquor was purchased and paid for, in a place where the traffic was not prohibited, it thereupon be- came Bennett's property. The defend- ant did not, and could not, sell or give it to Bennett, for it was not his to sell or give away. For the de- fendant to carry and deliver to Ben- nett his own. was not 'furnishing' it to him. If it be conceded thai the mere delivery to the purchaser under such circumstances constitutes 'furnishing' within the meaning of the statute, then one- who has in his house in ' dry ' territory, liquor which he has lawfully obtained, makes his servant or member of his family liable to indictment under this stat- ute, whenever in obedience to his re- quest some of it is brought to the owner. In the absence of a clear ex- pression to that effect, we are not will- ing to adopt such an extreme con- struction." 52. Colorado. — Schwartz v. People, (Colo. App. 1909), 104 Pac. 92. Kentucky. — Commonwealth v. King, 86 Ky. 436, 6 S. W. 124: Hancock v. Bingham, 31 Ky. Law Rep. 127, 102 S. W. 341; Tousey v. Stites, 2:: Ky. Law Pep. 1738, 66 S. W. 277. Louisiana. — State v. Lahorde, 119 La. 410, 44 So. 156; Police Jury of Avoyelles v. Town of Mansura, 119 La. 300, 44 So. 23; State v. Jackson, 105 La. 436, 29 So. 870; Police Jury of De Soto Parish v. Town of Mans- field, 49 La. Am. 796, 21 So. 598. Montana. — In re O'Brien, 29 Mont. 530, 75 Pac. 196. \. w York.- Killinger \ . I llemenl . 131 App. Div. 161, 115 X. V. Supp. •107. Oregon. — Baxter v. State, 49 Oreg. 353, B8 Pac. 677, 89 Pac. 369. y, ,,, s ._Fox v. State. 53 Tex. Cr. 150, 109 S. W. 370. Ex parte El- 434 LOCAL OPTION LAWS GENERALLY. rj 37$ territory covered by such election though the result in some town or precinct may have been different from the general result. 53 So where a justice's precinct has adopted local option, it applies to the whole precinct and subdivisions thereof cannot by holding elections nullify the law as to such precinct. 54 And such a vote in a parish controls the towns therein in Lousiana. 55 And a vote in a ward likewise controls a precinct in such ward. 56 So though the vote in a hamlet within the boundaries of a town authorized the sale of liquor yet when subsequently upon a submission of the question to the electors of the town the vote was for no license, this was held to determine the question for the entire town and to prohibit the sale of liquors in the hamlet. 57 But while a vote taken by a county which results against the sale of liquors is binding upon all subdivisions thereof during the time prescribed by law yet where the statute permits a vote by subdivisions thereof such a vote may be taken after the expiration of the time specified. 58 And a county is not precluded from taking a vote within the period prescribed by the fact that a subdivision thereof has held an election. 59 And in Kentucky it is decided under the laws in force there that if a county or city vote wet and a precinct therein has previously voted dry the precinct controls for itself but if the liott, 44 Tex. Cr. 575, 72 S. W. 837; 54- Ex parte Elliott, 44 Tex. Cr. Adams v. Kelley, 17 Tex. Civ. App. 575. 72 S. W. 837. 479, 44 S. W. 529; State v. Harvey, 55. State v. Laborde, 119 La. 410, 11 Tex. Civ. App. 691, 33 S. W. 885. 44 So. 156; Police Jury of Avoyelles Compare Griffin v. Tuekey (Tex. S. C. v. Town of Mansura, 119 La. 300, 1909), 118 S. W. 635; Kidd v. Twett, 44 So. 23. 28 Tex. Civ. App. 618, 68 S. W. 310; 56. Schwartz v. People (Colo. Woodlief v. State, 21 Tex. App. 412, 1000). 104 Pac. 92. 2 S. W. 812, citing Whisenhunt v. 57. Killinger v. Clement, 131 App. State, 18 Tex. App. 491. Div. (X. Y.) 401, 115 N. Y. Supp. A special charter will not ex- 407. empt a town or city from the effect 58. Commonwealth v. Bottoms, 22 of such vote in a division of which Ky. Law Rep. 410, 57 S. W. 493, it is only a part. Fox v. State, 53 followed in Commonwealth v. Nelson, Tex. Cr. 150, 109 S. W. 370. 22 Ky. Law Rep. 414, S. W. 53. Ex parte Fields, 39 Tex. Cr. 59. Smith v. Patton, 103 Ky. 444, 50, 46 S. W. 1127. 45 S. W. 459. § 379] LOCAL OPTION LAWS GENERALLY. 435 precinct votes againsl prohibition the question is left as it was before the vote was taken and a sul 7ote of the town or city which includes the precinct in favor of prohibition controls the whole town or city. 60 And in Texas an (lection held for an entire county and which is against local option is held qoI to re- peal local option in a subdivision of such county which had previ- ously adopt* (1 local option. 61 § 379. Same subject — where boundaries changed. A subsequent change of boundaries of a subdivision does not affect the operation of a local option law adopted therein, the boundaries being regarded for the peroid named as those at the time of the adoption of the law. 02 So though a part of the subdi- vision in which local option is in force is annexed to another subdi- vision the local option law has been held to remain in force in the part so annexed, until the voters of the original territory have n pealed it. 63 And where a local option law has been adopted in a certain territory, it is decided that it can only be changed by action of the voters and that the legislature can not repeal the law as to such territory, 64 and cannot nullify the law as to a part of that territory by creating a new school district which includes 00. Board of Trustees of Town of does not change the operation of the New Castle v. Scott, 30 Ky. Law law on the old distriet as left by such Rep. 804, 101 S. W. 044. Examine act. O'Neal v. Miliary. 30 Ky. Law Rep. Where a town is situated in 888, 101 S. W. 951 : K» urn m v. Black- two counties and after one has burn. 31 Ky. Law Rep. 1256, 104 S. voted prohibition for the em in' W. 968. county of which Buch town is an in- 61. Aaron v. State. 34 Tex. Or. corporation the other county can not 103, 20 S. W. 207. act contrary to such vote as to the 02. Prestwood v. State, ss Ala. part of the town located therein. 235, 7 So. 259; Higgina v. Slate. 64 Croxton v. Truesdell, 7:. s. C. 418, 56 Md. 410, 1 Atl. 876. See Jones v. S. K. 45. State. 07 Md. 256, 10 Atl. 216, hold- 03. /.;.,. ,,„,-,<■ Pollard, 51 Tex. Cr. ing that an act of the legislature 488, 103 s. \Y. 878. cutting ofT a portion of a district in ,:l - Ex parte Elliott, 44 Tex. Cr. which local option has been adopted 575, 72 S. W. 837. and forming it into another district 436 LOCAL OPTION LAWS GENERALLY. [§ 380 such part. 65 And it cannot by detaching a part of a justice's pre- cinct and adding it to another justice's precinct affect local option in the part detached. 66 So a court having authority to change the boundaries of a district for certain purposes cannot change it so as to nullify the effect of a local option law adopted in such locality. 67 But in Kentucky it has been decided that where after the adoption of a local option act the legislature by an act incorpo- rating a town within such district, conferred power upon the trustees of the town to regulate the sale of spirituous, vinous and malt liquors, a license granted by such trustees to a person to sell liquors within the town relieved him from the penalties of the local option act. 68 § 380. Statement of consent — Iowa. By a statute in Iowa it has been provided that before liquor may be sold in towns and cities a statement of consent signed by a certain per cent of the votes must be filed and acted upon affirm- atively by the board of supervisors. 69 Under this statute where a statement of consent is signed by the requisite number of voters of the county and the board has found thereon, it has no further function relative to the sale of liquor in any town. 70 But an ap- peal lies from a finding by the board as to the sufficiency of the statement of consent but such appeal is not triable by a jury. 71 65. Ex parte Elliott, 44 Tex. Cr. signed by majority of electors under 575, 72 S. W. 837. Iowa code § 2449. See Tuttle v. Poe- 66. Oxley v. Allen (Tex. Civ. App. chert (Iowa 1909), 121 N. W. 1057. 1908), 107 S. W. 945. The provision as to revocation of 67. Medford v. State, 45 Tex. Cr. consent upon a petition "signed by 180, 74 S. W. 768. a majority of the voters * * * as 68. Commonwealth v. Lemon, 25 shown at the last general election " Ky. Law Rep. 522, 76 S. W. 40. is to be construed as meaning a ma- 60. Schuneman v. Sherman, 118 jority of those who actually voted Iowa 230, 91 N. W. 1064; McConkie at such election and not of those v. District Court of Cedar County, who were qualified to vote but did 117 Iowa 334, 90 N. W. 716; Cam- not do so. Mills v. Hallgreen (Iowa eron v. Fellows, 109 Iowa 534, 80 N. 1910), 124 N. W. 1077. YV. 567. 70. Meyer v. Hobson, 116 Iowa 349, Revocation in a town of permit 90 N. W. 85. §380] LOCAL OPTION I.aws GENERALLY. i;;7 The mere fad thai the poll books and statemenl of consenl for the sale of liquor were temporarily removed from the custody of the auditor for the purposes of inspection, thus giving an opportunity to make changi a therein, will not in the absence of a showing that changes were in fact made, render them inadmissible on an issue as to the sufficiency of the statement of consent. 72 But where in a statement of consent to a sale of liquors in a town there is a name which is different from that appearing upon the poll books, parol evidence is not admissible to show that the person who signed the statement of consent voted at a preceding election though under a different name. 73 Under a statute forbidding a canvas- sing of a statement of consent more than once in the same year a second statement may be filed where the first one is withdrawn before acted upon. 74 71. Green v. Smith, 111 Iowa 183, 82 N. W. 448. The doctrine of election of remedies applies where a party has two or more inconsistent remedies for the same wrong and not where he has but one available remedy and mis- takenly pursues another which is not available and hence the prosecution of certiorari proceedings to test the va- lidity of the canvas of a statement of consent to the sale of liquor will not preclude an appeal from the ac- tion of the board. Moon v. Hart- such, 137 Iowa 236, 114 N. W. 1043. 72. Wilson v. Bohstedt, 135 Iowa 451, 110 N. W. 898. 73. Wilson v. Bohstedt, 135 Iowa 451. 110 X. W. 898 -, Porter v. Butter- field, 116 Iowa 725. 89 \". \V. 199. 74. in re Intoxicating Liquors, 120 Iowa G80, 95 N. W. 194. |_38 LOCAL OPTION ELECTIONS. CHAPTEK XVII. LOCAL OPTION ELECTIONS. SECTION 381. As to the petition generally. 382. Sufficiency of petition. 383. Petition — as to signers of. 384. Petition — presumption as to signers — burden of proof. 385. Petition — duty of officials as to determining sufficiency of sig- natures. 386. Election — order for generally. 387. Election — order for need not state exceptions as to sales. 388. Election — order for — errors and omissions in. 389. Election — order for — designating locality in. 390. Order — record as to. 391. Notices of election — publication and posting of generally. 392. Same subject — manner and mode of publication. 393. Same subject — presumption as to — burden of proof. 394. Effect of irregularities in connection with preliminaries to elec- tion. 395. Election — provisions as to time of holding of. 39G. Same subject — time prescribed with reference to another election. 397. Election — manner of holding — generally. 398. Same subject as to the election officials. 399. Same subject — as to the hours polls are open. 400. Same subject — as to the voters. 401. Same subject — as to the ballots and ballot boxes. . 402. As to the ballots continued. 403. Returns of election — certification. 404. Order declaring result of election — presumption as to prelim- inary steps. 405. Sufficiency of order declaring result. 406. Same subject — errors in connection with. 407. Same subject — record as to. 408. Result of election where statute requires publication of. 409. Result of election — publication for four successive weeks. § 381] LOCAL OPTION ELECTIO 139 Section 410. Result of election statute silent as to time or manner <>f pub- lieai ion. 411. Resull of t'leetion — presumption and evidence as to publication. 412. Contest of election — nature of ri ates. 413. Contest of election — proceedings. 414. Who may contest election. 415. Resubmission of quest ion. 41hereon the proper official designation of the offi- cer does not destroy the filing or prove that such paper was not filed: So though the law made it the duty upon the presentation of a local op- tion petition to a certain official for him to write after his name the word ' Auditor ' and instead of so doing he wrote the word ' clerk ' it was decided that the petitioners were not deprived of their rights under the law, the indorsement being re- garded as evidence of the filing and not a part of it. Accordingly it was hold that the trial court committed no error in permitting such indorse- ment to be corrected in accordance with the facts. O'Connor v. Board of Commissioners of Bear Lake County (Ida. 1909), 105 Pac. 560. In Ohio it has been decided that under § 2 of act 98 0. L. G8, a peti- tion under section two may be filed at any time after two years from the filing under section one but that the decision of the mayor under section two cannot take effect until two years after his decision under section one. Thomas v. Markbreit, 31 Ohio, C. C. 335. The court said per Giffen, J. " That part of Sec. 2 applicable to the question is as follows: "The petition provided for in this section shall not be filed until after two years or more shall have elapsed after the filing of the petition pro- vided for in Sec. 1 of this act.' While it is plain that the provi- sion permits a filing of a petition at any time after two years from the filing of a petition provided for in Sec. 1 (Lan. 7283a; B, 43C4-30a) Rev. Stat., it does not attempt to limit the operation and effect of the decision of the mayor or judge upon the original petition. This is pro- vided for in Sec. 6 (Lan. 7283f; B. 4364-30f) Rev. Stat., as follows: ' And the law shall remain in full force and effect in said resident dis- trict for tw r o years and thereafter un- til another petition is presented under the provisions of Sec. 2 of this act.' This provision does not mean that the law, under the decisions of the mayor or the judge, shall remain in force only until another petition is presented under Sec. 2 ; but at least two years and thereafter also, unless another petition is presented. It seems to contemplate a filing of the petition at such time as a decision thereon would not conflict with or annul the decision rendered under Sec. 1. The petition under either sec- tion amounts to nothing until ap- proved by the mayor or judge, and it is his decision that gives effect to the law, which according to Sec. 6 shall operate for at least two years from the time the petition is held sufficient by the mayor or judge. The decision of the mayor or judge is, in the language of the act, only prima facie evidence, and a later one can- not annul a former one, the duration of which is determined by the act it- self. It seems clear, therefore, that a pe- tition under Sec. 8 may be filed at any time after two years from the filing under Sec. 1, and it is equally 7. Pitner v. State, 37 Tex. Cr. 268, 39 s. \Y. 662. LOCAL OPTION ELECTIONS. Ill § 382] § 382. Sufficiency of petition. A petition is sufficienl which is substantially in compliance with the terms of the statute, an exacl compliance therewith nol being ,,,., , - ary. 8 And the addition to the petition of unnecessary words as where "or other intoxicating liquors" wen- added does no1 render the election void. 9 In Kentucky a failure to name in the petition a date for the election is held not to invalidate the fic- tion held in pursuance thereof, it being within the power of the county judge to fix any day. 10 A petition may be sufficienl though composed of several papers. 11 And the incorporating of a peti- tion legally withdrawn with a new petition has been held proper. 12 So two petitions may be construed as one in considering whether the proper number of signatures are attached. 13 Where the statute contains in full the questions to be submitted it is held sufficient in the petition for a submission of such question to vote to make reference to the law. 14 And where the statute does not prescribe the requisites of the petition as to allegations or statements it is clear that the decision of the mayor under Sec. 2 cannot take effect until two years after his decision under Sec. 1. Leave to file pet it on in error denied." " Term " and " session " of court distinguished in construing statute as to time of filing petition. Lipari v. Stair, lit Tex. App. 4.31. 8. State v. McCord, 207 Mo. 519, 106 S. W. 27. Sufficiency of statement of ob- ject of petitioners see State v. Smith, 38 Mo. App. 618. Metes and bounds need not be set out in the petition, unless the locality embraces less than a whole precinct or part of two precincts or all of one and part of another pre- cinct. Nichols v. State. 37 Tex. Cr. 546, 40 S. W. 2<;s. /;.,• parte Perkins, 34 Tex. Cr. 420, 31 S. W. 17"). Suffi- ciency of description of district in pe- tition see Ex parte Segars, 32 Tex. Cr. 553. 25 S. W. 26. 9. O'Neal v. Miliary, 30 Ky. Law Rep. 888, 101 S. \Y. 951. 10. Puckctt v. Snider, 110 Ky. 261, 61 S. W. 277. 11. State v. Hitchcock, 124 Mo. App. 101, 101 S. W. U7. 12. State v. Kello^ (Mo. 1908), 113 S. W. 660. IS. State v. Weeks. 38 Mo. App. .-.tiii, followed in State v. Smith, 38 Mo. App. 619. i »• Matter of Rice, 95 App. Div. (N. Y.) 28, 88 N. Y. Supp. 512, holding it was sufficienl to state thai the petitioners "request the submis- sion at the next biennial town meet- ing * * * of the several questions in relation to the sale of liquors * * * as provided by section 16 of the Liq- uor Tax Law." 412 LOCAL OPTION ELECTIONS. [§ 383 sufficient if it expresses in an intelligible manner the desire of the petitioners for an election under the local option law. 15 In case of a clerical error in copying the petition by the clerk the court may permit the minutes to be corrected. 16 But the courts' order cannot make sufficient a petition which is fatally defective under the statute. 17 In Michigan the determination of the board of supervisors as to the sufficiency of the petition and affidavits is final under the statute. 18 § 383. Petition — as to signers of generally. In those states in which a petition is essential the statute con- tains provisions as to the number of the signers and prescribes their qualifications such as " registered voters " or " qualified voters " and in such a case the petition can only be signed by those who possess the statutory qualification. 19 In construing such 15. Ex parte Lynn, 19 Tex. App. 293. See Steele v. State, 19 Tex. App. 425. 16. Cantwell v. State, 47 Tex. Cr. 511, 85 S. W. 19. 17. Matter of Rogers, 41 Misc. R. (N. Y.) 389, 84 N. Y. Supp. 1024. IS. Madill v. Common Council of City of Midland, 156 Mich. 50, 120 N. W. 355. 19. Perce v. Raleigh, 140 N. C. 65, 52 S. E. 277. Wliat petition should show as to signers. — Where only registered legal voters can sign a petition for a local option election the petition should show that it was so signed. People v. Wanek, 241 111. 529, 89 X. E. 708. Where persons signing a pe- tition have since died their names should be disregarded. Ferguson v. Monroe County, 71 Miss. 524, 14 So. 81. Withdrawal of names from petition. — A statute merely provid- ing for the withdrawal of names fraudulently attached to a petition for an election does not authorize the withdrawal of a name voluntarily signed. Koerker v. Board of Suprs. Werstein v. Board of Suprs. . (Mich 1909), 120 N. W. 354, holding names cannot be withdrawn after petition is filed ; Fischer v. Board of Suprs. (Mich. 1909), 120 N. W. 13; Patter- son v. Mead, 148 Mich. 659, 666, 112 N. W. 742. After a petition has been signed and filed petitioners may, it is held in Kentucky, appear and ask that names be stricken from the petition which request must be granted. Davis v. Henderson, 31 Ky. Law Rep. 1252, 104 S. W. 1009, citing Simpson v. Commonwealth, 30 Ky. Law Rep. 132, 97 S. W. 404; O'Neal v. Minary, 30 Ky. Law Rep. 891, 101 S. W. 951. Where the law contains no provis- ion as to the withdrawal of names of signers after a petition for a local option election a signer cannot with- draw Iiis name even though the pe- tition has not been filed. Rutled";e § :;*:!] LOCAL OPTION KLECTIONS. 11:: terms the phrase "legal voters" is held to be synonymous with "registered voters. 2 " And where a statute requires thai a peti- tion for an (lection shall be signed by a certain proportion of qualified voter* a finding that the petition was Bigned by a certain number of voters qualified to vote for members of the legislature is sufficient without stating that they were qualified according to the last registration books. 21 And a petition reciting that the peti- v. Board of Supervisors of Mar- quette County (Mich. 1910), 124 N. W. 945. It is said in the opinion in this case: "In the case of Koer- ber v. Supervisors, 155 Mich. 077, 120 N. W. 8, it was held that one who had voluntarily signed a peti- tion could not withdraw his name therefrom after the petitions were filed with the county clerk. It was not decided therein that he could not do so between the time of the posting of a copy of the petitions and the filing of the originals with the county clerk. The reasoning, however, of the opinion and the quotations made therein from the decisions of other courts logically, we think, leads to this result. To hold otherwise might give rise to great uncertainty. A case might be imagined where, after the requisite number of names had been secured to set the machinery of the law in motion, persons who had attached their names to the petitions and had lulled the circulators of the petition into a feeling that sufficient signatures had been procured might then withdraw their names having intended to do so from the first and thus prevent the submission of the question at the next general election. There is no provision in the law for the withdrawal of the names after the petition is posted and we think no such provision should be read into it." Per Moore, J. See also Kern v. Board of Sup sr- visors of St. Clair County (Mich. 1910), 124 X. W. '.ill as to no right to withdraw name after petition has been filed. Withdrawal of names under Arkansas statute. — One signing a petition under the Arkansas law has the right to have his name erased before the petition is filed in court and may authorize another to make such erasure. Bordwell v. Dills, 70 Ark. 175, 66 S. W. 040. After the petiton has been acted upon there can be no withdrawal. See Clark v. Daniel, 77 Ark. 122, 91 S. W. 9. And a petitioner cannot withdraw on appeal. McCullough v. Blackwell, 51 Ark. 159, 10 S. W. 259. 20. Roesch v. Henry (Oreg. I 103 Pac. 439. 21. Lemon v. Peyton, til Miss. 161, 8 So. 235. A registered elector is a quali- fied voter under the Michigan stat- ute as to signers of petitions for election. Wei stein v. Board of Suprs. (Mich. 1909), 120 N. W. 354. A registration book has been held not to be prima facte evidence that the persons signing a petition were qualified voters as required by law. Ferguson v. Monroe County. 71 Miss. 524, 14 So. 81. Statute providing for refer- ence to poll lists in verifying es attached to petition For an tion construed. Koerker v. Bond of Suprs. (Mich 1909), 120 X. W. 8, 444 LOCAL OPTION ELECTIONS. [§ 384 tioners are citizens sufficiently shows that they are qualified voters. 22 Where the statute requires a certain per cent of the voters to sign a petition for local option in a county it means of the voters of the entire county and not of each precinct or muni- cipality within the county. 23 But a requirement that a written petition be filed containing the signatures of a certain per cent of the voters of the territory for which the election is sought, is com- plied with where separate papers from different precints are filed containing the requisite signatures in each. 24 And where a statute requires a petition to be signed by a majority of the adult resi- dents it has been decided that both males and females may sign. 25 Again the failure of a petition to have the signatures of the req- uisite number of votes attached has been held in a case in New York not to be material where there has been a full and fair vote against local option and not to justify the issuance of a tax certificate. 26 And where the court is authorized to order an elec- tion on its own motion and in its discretion the fact that a peti- tion for an election does not have the requisite number of sign- ers does not render the election void. 27 § 384. Petition — presumption as to signers — burden of proof. That a petition contained the requisite number of competent signers is presumed from the fact of an order for the election having been issued. 28 So in view of the action of a town clerk, with whom the petition is filed, in submitting the question it will 22. Steele v. State, 19 Tex. App. 27. Lambert v. State, 37 Tex. Cr. 425. Ex parte Lynn, 19 Tex. App. 232, 39 S. W. 299. 293. 28. State v. Hitchcock, 124 Mo. 23. Roper v. Scurlock, 29 Tex. Civ. App. 101, 101 S. W. 117. App. 4G4, 69 S. W. 4f><». In Arkansas it has been declared 24. Smith v. Patton, 103 Ky. 444, that the signatures to a petition are 45 S. W. 459. taken as prima facie genuine or prop- 25. Blackwell v. State, 36 Ark. 178. erly authorized. Williams v. Citizens, 2«. Matter of Clement, 20 Misc. R. 40 Ark. 200. (N. Y.) 20, 60 N. Y. Supp. 328. After an election has been held ; 385] LOI AL OPTION ELECTIONS. 145 be presumed that the petition cantained the signatures required by law. 29 And where it is claimed thai a petition for a submission of this question to the voters did not contain the requisite number of signatures the burden is on those attacking the vote and election to show such fact. 30 § 385. Petition— duty of officials as to determining sufficiency of signatures. Where the designated official or board before ordering an elec- tion should know certain jurisdictional facts in regard to the petitioners it is his or their duty to ascertain the truth and to hear evidence for that purpose. 31 But where the official person- ally knows the petitioners it is held that he need not hear evidence to establish such facts. 32 And the fact that members of a town council being electors sign a petition is held not to disqualify them from deciding if the petition is signed by the r< quisite num- ber of electors. 33 In determining whether the petitioners for an election were qualified all parts of the record are to be con- sidered. 34 u nl the result duly declared the application therefor can not be im- peached by showing or attempting to show that some of the signatures of persons to the application were those of persons not qualified. Long v. State (Ala. 1010), 51 So. 636. i2i>. Matter of Town of Xewburgh, 97 App. Div. (X. Y.) 438, 89 N. Y. Supp. 10(i5. BO. Matter of Town of Newburgh, 97 App. Div. (X. V. 438, 89 N. Y. Supp. 10(15, citing Matter of Rice, 95 App. Div. (X. Y.) 28, 88 X. Y. Supp. 512. The allegation of a remon- strance pled against a petition to a court for a prohibitory order to the effect that certain signatur a I petition were not genuine should In- sustained by proof. McCullough v. Blackwell, 51 Ark. 15!). MS. W. 259. 31. Wyatt v. Ryan, 113 Ky. 306, 68 S. W. 134. The jurisdiction to determine whether the signers to a petition were qualified is with the county court in Missouri. State v. McCord, 207 Mo. 5 lit. lot; S. W. 27. Duty of board to hear proof as to genuineness of signatures to petition see Madison County v. Powell. 75 Miss. 762, 2:: So. 425. 82. Howard v. Stan till. 31 Ky. L. R. -207. 102 s. \V. 831. .".a. Hunter v. Senn.. til S. C. 44, 39 S. E. 235. 34. State v. McCord, 2o7 Mo. 519, 106 s. W. 27. 446 LOCAL OPTION ELECTIONS. [§ 386 § 386. Election — order for generally. The officials vested with authority to order an election must act in compliance with the law and cannot exceed the authority con- ferred. 35 Where the statute contains requirements as to the order for an election such as to what it shall contain or when it shall be made compliance therewith is generally held essential at least substantially.* 6 So the provisions as to ordering the election as for instance that the order may be made at a date not earlier than a certain number of days after the petition is lodged, must be com- plied with.' 17 And an order for an election must be issued at the session of the court prescribed by statute. 38 Such an order how- ever is sufficient if the substance of the statute is incorporated therein though the exact words are not used. 39 So when from an order of election it is clear as a whole that it was meant by law for a local option election and the voters could not have been misled it will be considered sufficient though not worded in the exact terms of the statute. 40 And an order for an election has been held suffi- cient to make the election valid where in stating the question there is a substantial compliance with the statute, and in the pub- 35. Ex parte Beaty, 21 Tex. App. statute it is held essential that the 426, 1 S. W. 451. signatures to the petition are gen- It will be presumed that in or- uine, that the signers are residents dering an election the commissioners of the precinct and are equal in num- acted within their powers. Cofield v. ber to twenty-five per cent of the Britton (Tex. Civ. App. 1908), 109 votes cast at the last preceding elec- S. W. 493. tion in such precinct. Wyatt v. Power of legislature to pre- Ryan, 113 Ky. 306, 08 S. W. 134. scribe terms. — The general assembly Sufficiency of order see Magill v. can prescribe such terms as it thinks State, 51 Tex. Cr. 357, 103 S. W. proper as a prerequisite to order- 397. ing an election. Pace v. Raleigh, 140 37. Wilson v. Hines, 99 Ky. 221, X. C. 65, 52 S. E. 277, 35 S. W. 629, 37 S. W. 148. To whom addressed. — The order 38. Ex parte Sublett, 23 Tex. App. of election should be addressed to the 309, 4 S. W. 894. city or town authorities. Common- 39. Wade v. State, 52 Tex. Cr. 608, wealth v. King, 86 Ky. 430, 6 S. W. 108 S. W. 376. l_!t. 40. Sweeney v. Webb, 33 Tex. Civ. To give jurisdiction to order App. 324, 76 S. W. 766. an election under the Kentucky §§ 387,i LOCAL I NS. 447 lished notice of election the question is stated in the language of the statute and the ballol is in proper form. 41 If the statute dot - not prescribe the form of the order or state what facte it .-hall recite it should appear therefrom that the necessary rondit ion- existed to give the court jurisdiction. '- § 387. Election— order for need not state exceptions as to sales. In ordering a local option election exceptions in the statute as to certain classes of sales need not be incorporated. 43 So where the law provides for the submission of but one issue that " For prohibition " and " against prohibition " the order authorizing the election need not contain the exceptions in favor of the sale of liquor for medicinal and sacramental purposes, such exception being no part of the matter to be voted upon but following as a matter of course. 44 § 388. Election — order for — errors or omissions in. Mere clerical errors or omissions in the order will not as a gen- eral rule invalidate an election thereunder it not appearing that any one was misled thereby or deprived of a right to vote upon the question. 45 So the mere misnaming the title of an officer to hold the election, in an order therefor, will not render the election n. State v. Kellogg, Mo. 133 operation domestic wines the act will \->l>. 431, 113 S. W. 660, holding not apply to them. Smith v. state, •hit an omission to designate in the 112 6a. 291, 37 S. E. 441. order the newspaper in which the no- 44. Shields v. State, 38 Tex. Or. tice f the election is to he published 2:>2. 42 S. W. 398. See also Truesdale does not affect the validity of the v. State, 42 Tex. Cr. ."'It. 61 S. W. election where the clerk published s - Commonwealth v. Jones. 27 of the act, when taken in accordance Ky. L;nv Rep. Ki. 84 S. W. 305. with its terms and on the day desig- 49. Tousey v. Delluy, 23 Ky. Law nated for that purpose is not invalid Rep. 458, 02 S. W. 11 IS. merely because the date specified for 5©. Bruce v. State, 36 Tex. Cr. 53, the iown meeting was prior to that 39 S. W. 083. upon which the general provisions of Bl« Thurmond v. State, 40 Tex. Cr. the act were to take effect. State v. 162, 79 S. W. 316. Wenzel, 72 N. H. 396, 56 Atl. 918. §§390,391] LOCAL UI'TK.N ELECTIO , , : , In Texas it is decided that an application or order for an election is sufficient which alludes to a county, city or town by name bu1 if the locality is other than a known subdivision of the state then it should be described by metes and bounds. 54 § 390. Order — record as to. As the board in ordering an election exercises a limited and special jurisdiction unless its record contains a recital of the nec- essary jurisdictional facts or it appears that these facts were shown to the satisfaction of the board, it acts without jurisdic- tion in making the order and the election is void. 55 But where the clerk in entering the order for an election upon the records erroneously omits the recitals contained therein a nunc pro tunc entry after and at the same term correcting the record so as to show that the order contained the proper recitals is within the power of the court to make. 56 And a mistake in the date of an order entered in the record of the county court in relation to an election will not invalidate such election. 57 § 391. Notices of election — publication and posting of generally. An ordinary provision of a statute as to local option is one re- quiring that notice of the election shall be published in a news- paper or posted for a certain length of time prior to the election. Compliance with such a provision is in many cases considered as essential to the validity of the election. 58 So under the ISTew York 52. Commissioners Court of Nolan •""'«• Williams v. Stato. 35 Tox. Cr. County v. Beall, 98 Tex. 104, 81 S. 52, 31 S. W. 654; Ex parte Speagle, W. 520: Board v. Buchanan, 36 Tex. 34 Tex. Cr. 465, 31 S. W. 171. See Civ. App. 411, 82 S. W. 194; Oxford Bruce v. State, 36 Tox. Cr. 53, 39 v. Frank County Judge, 30 Tox. Civ. S. W. 083. App. 343. 70 S. W. 426. •"• Lester v. Miller, 70 Miss. 309, 53. State ex rel Wirt v. Cass 24 So. 193. County Court. 137 Mo. App. 098, BG. Stato v. Bird, 108 Mo. App. 119 S. W. 1010. See also State v. 103. S3 S. W. 284. Mitchell (Mo. 1908), 115 S. W. •"«"• Thomas v. Commonwealth. 90 1098. Va. 92, 17 S. E. 788. 450 LOCAL OPTION ELECTIONS. [§ 391 ir is decided that a submission of questions without posting the notices thereof as required by the statute is void and that where this has occurred it is proper to resubmit the questions at a special town meeting called in accordance with the provisions of the act. 59 In other cases in this same state however it is held that failure to post or publish the notice is not necessarily a juris- dictional defect but that where it is not posted or published the court may exercise a certain discretion in determining whether an application for resubmission at a special town meeting shall be granted. 60 And in other jurisdictions it has been decided that the failure to properly post notices will not invalidate the election where the result was not thereby affected. 61 So in a recent case 58. State v. Reid (Mo. 1908), 114 S. W. 1116; Matter of Smith, 44 Misc. R. (N. Y.) 384, 89 N. Y. Supp. 1006; Guernsey v. McHaley (Oreg. 1908), 98 Pac. 158; Haddox v. County of Clarke, 79 Va. 677. Sufficiency of notice of submis- sion or of election. See Matter of Woolston, 35 Misc. R. (N. Y.) 735, 72 N. Y. Supp. 406; Voss v. Terrell, 12 Tex. Civ. App. 439, 34 S. W. 170. The notice of an election should conform to the order of the court. — State v. Rinke (Mo. App. 1909), 121 S. W. 159. Notice of election should be posted for the length of tinie prescribed by statute. — State v. Kaufman, 75 Mo. App. 188; State v. Kaufman, 45 Mo. App. 656; State v. Tucker, 32 Mo. App. 620. Under a Texas statute it has been decided that a failure to post one of the notices the required length of time is not ground for contesting the election the result not having been affected thereby. Norman v. Thomp- son. UC Tex. 250, 72 S. W. 62. A statute requiring publica- tion for four successive weeks before election is to be construed as meaning twenty-eight days. State v. Brown, 130 Mo. App. 214, 109 S. W. 99; State v. Swearingen, 128 Mo. App. 605, 107 S. W. 1. See State v. Dobbins, 116 Mo. App. 29, 92 S. W. 136. 59. Matter of O'Hara, 63 App. Div. (N. Y.) 512, 71 N. Y. Supp. 613; Matter of Powers, 34 Misc. R. (N. Y.) 636, 70 N. Y. Supp. 590. Com- pare Matter of Rowley, 34 Misc. R. (N. Y.) 662, 70 N. Y. Supp. 208; Matter of France, 36 Misc. R. (N. Y.) 693, 74 N. Y. Supp. 379. In New York all four questions must be submitted in accordance with Liquor Tax Law. Matter of Eggle- ston, 51 App. Div. (N. Y.) 38, 64 N. Y. Supp. 471 ; People ex rel. Caf- frey v. Mosso, 30 Misc. R. (N. Y.) 164, 63 N. Y. Supp. 588. 60. Matter of Town of La Fayette, 45 Misc. R. (N. Y.) 141, 91 N. Y. Supp. 970. See Matter of Woolston, 35 Misc. R. (N. Y.) 735, 72 N. Y. Supp. 406, holding the provision to be merely directory. 61. Rocsch v. Henry (Oreg. 1909), 103 Pac. 439. ..,2] LOCAL OPTION ELECTIONS. !-| in Michigan in which it was claimed thai an election w&b void because of the failure of the county clerk to publish the i the election the prescribed time before it was held the court said: "If such an election is to be held invalid and the decisive will of tho people thwarted by the mistake of the county clerk in fail- ing to publish the notice for the exact time it must he hecause the rules of law are so inexorable that they will never tolerate a harm- less error or mistake of a ministers! officer. * * * We choose to rest our decision in this ease upon the fact that a strict compliance with the law as to notice would have made no differ- ence with the result of the election, inasmuch as a majority of all the voters of the county voted for prohibition. Under such cir- cumstances omissions of duty by ministerial officers in giving notice will not invalidate the election." 62 § 392. Same subject — manner and mode of publication. Where the statute as to local option prescribes the manner of giving notices for elections a provision in a general law as to elections is not applicable. 63 A provision that the notice of the ordering of an election shall be published in newspapers selected by certain officials is complied with by a publication in all the newspapers among which the selection of those entitled to publish the notice must be made. 04 And where the proprietor of a news- 62. Bauei v. Boardof Denmark Tp. The publication of ootice of an (Mich. 1909), 122 X. W. 121. Per election need not be in a newspaper Grant, J. published within the territorial limits 68. Roper v. Scurlock, 29 Tex. Civ. of that part of the county 1<> be af- App. tut. 69 s. \Y. 45G. fected but it may be iii a newspaper Failure to designate news- not so published but i-; besl ca leu- paper. — Where the court did not lated to carry notice to the voters of designate a newspaper in which the the territory in which such election notice of election should be published is to be held. State v. Turner (Mo. it was declared that its subsequent App. L910), 125 S. W. 531. action after the election in amending 84. Paul v. Gloucester County. 50 the record should not be upheld. X. J. L. 585, 15 Atl. 272, 1 L E. A. state v. Baldwin, 109 Mo. App. 573, 86. 83 S. W. 266. 452 LOCAL OPTION ELECTIONS. [J 393 paper refused to publish the uotice it has been decided under the Kentucky statute that publication by handbills is sufficient the statute providing that publication shall be by both means. 65 The officer whose duty it is to give the notice of an election may adopt a printed signature as his own and its use will not render the notice defective the statute not so providing. 06 And a sheriff charged with the duty of posting notices may select agents to post them and is not confined in his selection to those whom he spe- cially appoints as deputies. 67 § 393. Same subject — presumption as to — burden of proof. That notice of an election was in conformity to the statute will be presumed in the absence of evidence to the contrary. 68 And it is not necessary in a prosecution to show affirmatively that notice of an election was given as it is for the defense to show it was not. 69 And where a prima facie case is made by the state as to the taking of required preliminary steps one claiming required no- tices of election were not posted has the burden of establishing it. 70 But though it will be presumed that copies of an order for elec- tion were posted as required by law this presumption may be overcome, as by evidence showing the delivery of such copies to 66. Butler v. Fiscal Court of Jef- v. Dugan, 110 Mo. 138, 19 S. W. 195. ferson County, 31 Ky. Law Rep. 590, 69. State v. Foreman, 121 Mo. 103 S. W. 251. App. 502, 97 S. W. 209. CO. Roesch v. Henry (Oreg. 1909), 70. Frickie v. State, 39 Tex. Cr. 103 Pac. 439. 254, 45 S. W. 810; Irish v. State, 34 «7. Roesch v. Henry (Oreg. 1909), Tex. Cr. 130, 29 S. W. 778; Segars v. 103 Pac. 439. State, 35 Tex. Cr. 45, 31 S. W. 370; 68. State v. Brown, 130 Mo. App. Bowman v. State, 38 Tex. Cr. 14, 40 214, 109 S. W. 99. S. W. 796, 41 S. W. 035; Shields v. Proof of publication of notice. State, 38 Tex. Cr. 252, 42 S. W. 398. — Where the statute failed to provide An allegation that "no notice the manner in which the notice of the was ever issued or posted as by law election or its result should be proved provided " presents no issuable fact it was held competent to prove the but is a mere conclusion of law. publication of the notice by the oral State v. County Court (Oreg. 1909), testimony of the publishers of the 101 Pac. 907. paper in which it was made. State § 394] LOCAL OPTION ELECTIONS. !.-;; nun to post where there was no legal obligation on their part to post them. 71 § 394. Effect of irregularities in connection with preliminaries to election. It may be stated generally that mere irregularities in connec- tion with the preliminaries to an election will not, in the absence of evidence showing that the result was thereby affected, avoid the election. 72 Mere irregularities of election officers not affecting the purity of the election nor the right of the voter and not in reference to matters made mandatory by law do not affect the validity of the election. 73 So irregularities in putting names on the registration list does not avoid an election where the persons whose names were so placed thereon were qualified voters. 74 And failure on the part of registrars to observe legal requirements as where they close the registration books too early does not avoid an election unless it appears affirmatively that the result is differ- ent from what it would have been if there had been a proper com- pliance. 75 And in New York it is declared that where the people of a town have expressed their will at an election it should not be overridden because of the negligence and carelessness of town officers, 70 and that a resubmission should not be ordered for slight irregularities. 77 71. James v. State, 21 Tex. App. 76. People ex rel. Guernsey v. 189, 17 S. W. 143. Pierson, 35 Misc. R. (X. Y.) 406, 71 72. Cofield v. Britton (Tex. Civ. X. V. Supp. 993. App. 1908), 109 s. W. 493. 77. Matter of Smith, 44 Misc. R. 7=5. Fullwood v. Stal.-. (17 Miss. iX. Y. ) 3S4. 89 X. Y. Supp. 1006. 554 7 So. 4:S-2. The New York law contemplates 71. Cole v. McClendon, 109 Ga. thai action shall be taken at the an- 183, 34 S. E. 384. Ininl town meeting. People ex rel. That the poll lists were not Thomas v. Sackett, 15 App. Div. properly subscribed held no1 a I X. Y.) 290, 4 I X. Y. Supp. 593, fatal defect. People > e rel. Guernsey A general election larsr 1 v. Pierson, ::."> Misc. I!. 1 X. Y. 1 Kit;. ing all special elections 1" be held on 71 X. Y. Supp. 993. :1 Tuesday, has been held in New 75. Chamlee v. Davis, 115 Ga. 266, Jersey no1 t" apply 1<> an election 41 S. E. 691. under a local option law. Pan! v. 454 LOCAL OPTION ELECTIONS. [§§ 395,390 § 395. Election — provisions as to time of holding of. The statutes generally provide as to the time when an election shall be held and where there are provisions to this effect, the election to be effective should be held in accordance therewith. 78 So an election must be held within the time designated after re- ceipt of petition where the statute contains a provision of this character, 79 and an election held after such period has elapsed is void. 80 And the election must be held within the prescribed period after the date of the order therefor. 81 § 396. Same subject — time prescribed with reference to another election. Where a statute provides that an election shall not be held within a certain period before or after a certain other election, there must be a compliance therewith, 82 and an election inside of the time prescribed will be void. 83 So where a statute requires Gloucester County, 50 N. J. L. 585, 15 Atl. 272, 1 L. R. A. 86. Annual election required. — Under a provision that if a majority vote in favor of license permits shall be " issued for the ensuing year " there must be an annual submission of the question to the people. State v. Barber, 19 S. D. 1, 101 N. W. 1078. 79. State v. Kellogg (Mo. 1908), 113 S. W. 660. 80. State v. Ruark, 34 Mo. App. 325. 81. King v . state, 33 Tex. Cr. 547, 28 S. W. 201 ; Curry v. State, 28 Tex. App. 475, 13 S. W. 752. 82. Wynne v. Williamson, 94 Ga. 603, 20 S. E. 436; In re Wooldridge, 30 Mo. App. C12; Examine State v. Searcy. 39 Mo. App. 393; Seay v. State, 51 Tex. Cr. 444, 102 S. W. 1127. Computation of time. — Where a local option election cannot be held within so many days of a regular election the day on which the regu- lad election is held is to be included in computing the time. Newton v. Ogden, 126 Ky. 101, 31 Ky. R. 549, 102 S. W. 865. A void election is not an election within the legal period. State v. Rinke (Mo. App. 1909), 121 S. W. 159. In Texas it has been decided that a provision of the statute that no election shall be held within " the same prescribed limits " within a cer- tain length of time is to be construed as meaning all of the same territory and not as precluding an election in- the same precinct for a town, city or subdivision thereof. Ex parte Brown, 35 Tex. Cr. 443, 34 S. W. 131. But see § 378 herein. 83. Ex parte Randall, 50 Tex. Cr. 519, m S. W. 870. s 3\ the election lug under New York Liquor Tax Law. of so-called no license commissioners See Matter of Sullivan. 30 Misc. R. but only by a direct vote upon the (N. Y. ) 682, 64 X. Y. Supp. 303. 456 LOCAL OPTION ELECTIONS. [§ 398 general election laws except where it is otherwise provided in the local option law. 89 And where the election is to be in conformity to the general election law it is essential to its validity that it be so held. 11 " And a failure on the part of officers to comply with a requisite of law that may be essential in the furtherance of an election will, if the election be a special one, render it nugatory and void, if thereby, electors sufficient to have changed the result were deprived of the right to vote at said election. 91 It is however decided that a failure to comply with a directory provision in holding an election does not invalidate it where the election was in all other respects free and fair. 92 And where an election is ordered for a district the fact that the voters at one of the precincts decline to hold the election deciding to leave the matter to the voters of the other precinct does not render the election void, the matter of holding the election being optional with such voters. 93 Such an election cannot be held without some machinery having been provided for the holding of it and this must be done by the proper officials to render it valid. 94 § 398. Same subject — as to the election officials. "Where it appears from the record that officers were duly ap- pointed to hold an election it will be presumed that it was held by them. 95 And that persons who were qualified to hold the elec- 89. Ex ]>arte Kennedy, 23 Tex. it was held at another place near App. 77, 3 S. W. 114. at hand, if persons attending the »0. State v. Swearingen, 128 Mo. election at the latter place would be App. 605, 107 S. W. 1. seen from the former place and it 91- Ex parte Kennedy, 23 Tex. did not appear that any one was mis- App. 77, 3 S. W. 114. led. Bordwell v. State, 77 Ark. 161, !»iJ. Puekett v. Snider, 22 Ky. Law 91 S. W. 555. Rep. 1718, 01 S. W. 277: State v. »3. Ex parte Schilling, 38 Tex. Cr. Swearingen, 128 Mo. App. 605, 107 287, 42 S. W. 553. S. \v. 1. ° 4 - Police Jury of Parish of Place of holding election.— An Tangipahoa v. Town Ponchatoula, election has been held to he not void 118 La. 138, 42 So. 725. becau<-<- instead of being held at the !> r>. j am es v. State, 21 Tex. App. place lawfully fixed for that purpose, 353, 17 S. W. 422. §§399,400] LOCAL OPTION ELECTIONS. 457 tion failed to take and subscribe the oath required by law i not affect the validity of an election it not appearing that by reason of such failure the result was different from what it would have been had such persons been duly sworn. 96 An election may be invalidated by fraudulent conduct on the part of the judges in conducting the election. 07 § 399. Same subject— as to the hours polls are open. Though the polls may not be open the entire time prescribed by the statute the election will not on such account be held void it not appearing that any voter was thereby deprived of an oppor- tunity to vote. 98 It may be stated generally however that the polls should be open for the length of time prescribed by law. 00 And in case of a wide departure from the provisions of the statute as to the hours of opening and closing the polls, the election will not be held valid on the ground that such provisions are merely directory. 1 § 400. Same subject — as to the voters. The fact that persons voted who were not qualified to vote be- cause of failure to pay their poll tax will not invalidate the election in the absence of a showing that by excluding such votes the result would have been different. 2 And where the payment of a poll tax is a condition precedent to the right to vote it will be presumed in the absence of evidence to the contrary that a voter produced the proper evidence before the judge of election that he had paid such tax in accordance with law or else he would not og. Jossey v. Speer, 107 Ca. 828, v. Hasbrouck, 21 Misc. R. (N. V.) 33 S. E. 718. 188, 17 \. Y. Supp. 109. 97. Freeman v. Lazams, 61 Ark. ! » ! »- Stale v. Drake. 83 Wis. 257, 247. 32 S. W. 680. 53 X. W. 196. J>s. Hoover v. Thomas. 35 Tex. Civ. '• Savage v. Umphries (Tex. Civ. App. 535, SO S. W. 859. App. 1909), 118 S. W. 893. Closing the polls before sun- -• Hoover v. Thomas, 35 Tex. Civ. set does not invalidate.— People App. 535, 80 S. W. 859. 45S LOCAL OPTION ELECTIONS. [§§ 401,402 have been permitted to vote. 3 But a failure to require persons to show poll tax receipts does not avoid an election it not appearing that the ballots of such persons caused the election to result as it did. 4 Again a ballot by one whose name appeared upon the " voters book " should not be rejected from the count because the voter was not at the time of his signing his name in that book, entitled to do so, if prior to the election he removed his disquali- fication and lawfully procured the registers to place his name upon the list of registered voters. 5 § 401. Same subject — as to the ballots and ballot boxes. Mere irregularities in connection with the holding of an election such as having fewer ballot boxes than is usual will not invalidate the election where it appears there was a full, free and fair ex- pression of the voters. 6 And irregularities in connection with the casting of the ballots do not vitiate an election unless the result has been thereby affected. 7 So placing the ballot in the wrong box is held not to render the ballot void. 8 And in this connection it is decided that a statute requiring voters to cast votes for local option in one box and those against it in another is unconstitu- tional, as it deprives voters of the privilege of secrecy of the ballot. 9 § 402. As to the ballots continued. As a general rule the ballot should conform to the require- ments of the law in regard thereto. 10 So where the law requires 3. Savage v. Umphries (Tex. Civ. Commissioners, 60 Conn. 339, 22 Atl. App. 1909), 118 S. W. 893. 847. i. Slinson v. Gardner, 97 Tex. 287, »• State ex rel. Buchmore v. State 78 S. W. 402. Bord of Canvassers, 78 S. C. 461, 59 •".. Drake v. Drewry, 112 Ga. 308, S. E. 145. 37 S. E. 432. 10 - Griffin v. Tucker (Tex. S. C. 6. Roper v. Rcurlock, 29 Tex. Civ. 1909), 118 S. W. 035. App. 464, 0!) S. W. 456. Sufficiency of ballots.— See Leh- 7. State ex rel. Buchmore v. State man v. Porter, 73 Miss. 210, 18 So. Board of Canvassers, 78 S. C. 461, 920. 59 S. E. 145. Ballots containing the words " For s. Donovan v. Fairfield County prohibition " and " against prohibi- § 403] AL OPTION ELECTIO i;,!» that all ballots shall be printed on white paper so thick that tin- printing cannot be distinguished from the back if ballots are used which do not substantially comply with the law the election is not conducted as required and is invalid. 11 And the ballots should be marked as provided by statute. 12 So when- the statutes requires that the ballots shall be printed or written " For license " or "Against license" a ballot marked " No whisky " is informal and irregular. 13 It is however decided that a ballot should 1"' counted if from it the wish or will of the voter can be ascer- tained. 14 And where a local option law provides for the form oi ballots to be used thereunder it should be followed and the ballot is sufficient if this is done and further requirements in a general law such as to the signature of some election official being affix* d thereto need not be followed. 15 Where a ballot appears to have been mutilated the presumption arise that the mutilation took place after the election officers had counted it. lc § 403. Returns of election — certification. Where the returns made by the inspectors of election bear date as of the day on which the election was held it will be presumed that they prepared the same " without recess or adjournment " as tion" have been held sufficient. Po- 13. Walker v. Mobley 101 Tec lice Jury of Parish of Avoyelles v. 28, 103 S. W. 490. Descant, 105 La. 512, 29 So. 976. See also Ex parte Anderson, 51 Form of ballot for local option Tex. Cr. 239, 102 S. W. 727, holding in New York.— See Matter of Ar- that the failure of the presiding nold, 32 Misc. R. (N. Y.) 439, 6G judge to sign his name upon the N. Y. Supp. 557. ballots will not of itself invalidate the 11. Nail v. Tinsley, 107 Ky. 4 11, election. _. „ , v .o- Compare Brigance v. Holock, 44 m , _: Tex. Civ. App. 277, 97 S. W. 1060, 12. Griffin v. Tucker (Tex. Civ. ' m dm<_ r that a provision (hat the App. 1909). 119 S. W. 338. . .? . , . . .. ir presiding judge oi an election mu-t 13. Prestwood v. Borland. 92 Ala. Bign th( , ,,.,„,,, ;lIU , providil , g that no 599. 9 So. 223. ballot shall be counted which is not 14. State v. Bossa, 69 Conn. 335, bo signed is mandatory. 37 Atl. 977. I»8. Savage v. Umphries (Tex. Civ. App. 1909) . 118 S. W. S93. 460 LOCAL OPTION ELECTIONS. [§ 403 required by law. 17 But a failure to canvass the vote in time pre- scribed in the statute is held not to invalidate the election. 18 And the addition to the certificate made of the canvass of a signature of a person not authorized to sign it does not vitiate the action of such board. 19 Xor will a failure of inspectors to state in their return the number of void ballots invalidate the election where such ballots were enclosed as the statute directed in a sealed pack- age and filed with a statement of the canvass. 20 And the consider- ation by the board of supervisors, in determining the result of an election, of illegal returns from certain townships, will not invali- date the election, where the exclusion of such returns will not destroy the majority in favor of the proposition submitted to the electors. 21 Again though the statute requires that a certified copy of the statement of the result shall be filed by the town clerk with the county treasurer a failure to do so will not defeat the will of the voters and a license is properly refused. 22 Where it is 17. Giddings v. Wells, 99 Midi. 221, 58 N. W. 64. 18. State v. Mackin, 51 Mo. App. 299. lf>. People ex rel. Guernsey v. Pierson, 35 Mise. R. (N. Y.) 406, 71 N. Y. Supp. 993. 20. People ex rel. Guernsey v. Pierson, 35 Misc. R. (N. Y.) 406, 71 X. Y. Supp. 993. 21. Giddings v. Wells, 99 Mich. 221, 58 N. W. 64. 22. Matter of Krumbholz, 60 Misc. R. (N. Y.) 534, 113 N. Y. Supp. 1060. The town clerk under the New York Law is not confined thereby to any particular form in making his certificate of the result. People ex rel. Smith v. Foster, 27 Misc. R. (N. V.) 576, 58 N. Y. Supp. 574. See People ex rel. Clint v. Ham- ilton, 27 Misc. R. (N. Y.) 360, 58 X. Y. Supp. 959, as to an insufficient certificate. A statement of a town clerk as to the result of an election where he came into office a considerable time after such election was held is a nullity and the determination of the board of canvassers will in such a case, be regarded as binding upon a justice of the Supreme Court in a proceeding before him to cancel a certificate. Matter of Brown, 38 Misc. R. (N. Y.) 157, 77 N. Y. Supp. 261. The county treasurer has no power to pass upon the validity of the certi- ficate of the town clerk of the result. People ex rel. Smith v. Foster, 27 Misc. R. (N. Y.) 576, 58 N. Y. Supp. 574; See People ex rel. Clint v. Ham- ilton, 27 Misc. R. (N. Y.) 360, 58 N. Y. Supp. 959, as to an insufficient certificate. Jurisdiction to license not de- pendent on making of returns. — Under a statute providing that if the LOCAL OPTION ELECTIONS. ■Hil § 404] tho duty of officials merely to receive and keep in their custody the official returns of an election such duty involves do consider- ation by them of the legality of the election and does not permit them to raise the question of legality as a reason for not perform- ing their duty. 23 And where officials exceed their authority and declare an election void and order a second election the latter will be regarded as void. 21 Where the election is a void one mandamus will not issue to compel a canvas of the votes and determination of the result.-" Jn Michigan the determination of the canvas-in- board of the result is final. 26 In Mississippi certification of the returns of a local option election by a majority of the commis- sioners is held sufficient. 27 § 404. Order declaring result of election — presumption as to preliminary steps. An order declaring the result of an election, and putting local option in force, is prima facie evidence that all of the preliminary steps have been taken prior to the issuance of the order. 28 So where such an order has been made it will be presumed that the majority of the votes cast at a gen- eral election upon the question as to wlicl her license to sell liquors shall be for license " then it shall be law- ful for the county court to grant li- censes " the jurisdiction <>f the county court depends upon the result of the election, and nol upon whet her the board of election commmissioners made return of the elect inn upon this question to the county court. Bord- well v. State, 77 Ark. 161, 91 S. \V. 555. 23. County Commissioners of Franklin County v. State ex rel. Patton. 24 Fla. 55, 3 So. 471. 24. Burks v. State 51 Tex. Cr. 637, 103 S. W. 850. -•"• State ex rel. Smith v. Drake, 83 Wis. 257, 53 N. W. 496. 2G. The Determination of the can- vassing board under the Michigan statute is final. Haehnle Brew. Co. v. Board of Supervisors of Jackson County 156 Mich. 493, 121 N. W. 209. 27. Bain v. State. 67 Miss. 554. 7 So. 408, citing opinion of the Jus- tices, 68 Me. 587. 28. State v. Carmody 50 Oreg. 1, 91 Pac. 446; 1081 Neal v. State, 51 Tex. Cr. 513, 102 S. W. 1139; Em parte Schilling, 38 Tex. Cr. 287, 4-2 S. \Y. 553; Chapman v. State. 37 Tex. Cr. 167, 39 S. W. 113; Morton v. state. 37 Tex. Cr. 131, 38 S. W. 1019; Bunce v. Stale, 36 Tex. Cr. 53, 39 S. \Y. 683; Irish v. State. ;54 Tex. Cr. 130, 29 S. W. 778. 462 LOCAL OPTION ELECTIONS. [§§ 405 406 proper notice of election required by law was given. 29 And though an order declaring the result does not show that the court opened the polls it will be inferred that they were opened where it shows that the votes were counted and tabulated. 30 § 405. Sufficiency of order declaring result. Where an election results in favor of prohibition an order de- claring the result is sufficient if it states that fact and prohibits the sale of intoxicating liquors, except for certain purposes speci- fied in the statute, within the limits of the county. The duration of the prohibition need not be stated that being fixed by law. 31 The order declaring the result of an election need not however state therein the exceptions as to sales. 32 A certificate of the judge declaring the result of an election should to render it ad- missible in evidence state the date of the publication of the order putting prohibition in force as otherwise supplementary evidence showing such date is necessary to render it admissible. 33 The officials upon whom the duty is imposed of declaring the result of an election have a right to presume that the certificate to the re- turns made by the election officers are correct and need not open the boxes and count the votes. 34 And the jurisdiction being shown by a valid record and canvass, the determination of the board as to the result of a local option election is final. 35 § 406. Same subject — errors in connection with. Where by a clerical error the order declaring the result of an election shows less than a majority for prohibition while the con- 29. Neal v. State, 51 Tex. Cr. 513, 33. Loveless v. State, 40 Tex. Cr. 102 S. W. 1139. 221, 49 S. W. 892. :'.<>. Sinclair v. State, 45 Tex. Cr. 34. Roper v. Scurlock, 29 Tex. Civ. 487, 77 S. W. 621. App. 464, 69 S. W. 456. 81. Lipari v. State, 19 Tex. App. 35. Thomas v. Abbott, 105 Mich. 431. 687, 63 N. W. 984. 32. Chapman v. State, 37 Tex. Cr. In New York the certificate of 167, 39 S. W. 113; Ex parte Perkins, county treasurer as to result is 34 Tex. Cr. 429. 31 S. W. 175. deemed presumptively correct and the §§ 407,408] LOCAL OPTION ELE< CIONS. tray is apparent from the other part:-; of such order it i- thereby invalidated. 86 And when- the bounds are di finiti ly and sifically set out both in the order for and declaring the result of an election it is immaterial that the territory is called by a name which is no1 correct. 87 So a delay in certifying the result which is not unreasonable under the circumstances will not avoid the election. 38 Again an election is not rendered void by the fact that the court declaring the result had no authority to so act. 39 § 407. Same subject — record as to. Where the proper resolutions have been passed putting local option into force in a county neglect of the county clerk who acts in a ministerial capacity in recording the resolutions does not invalidate the election. 40 So failure of the clerk to properly certify the copy of the order declaring the result entered on the minutes by the judge does not affect the entry. 41 And though it is the duty of the county judge to make an entry of the order de- claring the result, the fact that such entry was made by his suc- cessor in office does not render such entry objectionable. 42 § 408. Result of election— where statute requires publication of. In several states where local option laws have been passed the statute contains a provision that there shall be a publication of the result of the election. 43 And where publication of an order de- result as shown thereby should be 3*>- Chapman v. State, 37 Tex. Cr. upheld. People ex rel. Lasher v. 167, 39 S. W. 113. Adair, 44 Miso. R. (N. Y.) 444, 89 <*o. Madill v. Common Council N. Y. Supp. 576. of City of Mi. Hand. L56 Mich. •">'''■ ™. Ex parte Burrage, 26 Tex. App. 120 X. W. 355. 35, 9 S. \Y. 72. 41 - Drechsel v. State, 35 Tex. Cr. ■'-. Jordan v. State, 37 Tex. Cr. 577, 34 S. W. 932. 222, 38 S. W. 780, 39 S. W. 110, <-• Barham v. State, 41 Tex. Cr. following Kelley v. State, 37 Tex. Cr. IRS. 53 S. W. 109. 220, 38 S. W. 779. 39 s - W. 111. As to publication of result of elec- 38. State v. Mackin, 51 Mo. App. tion see Drechsel v. Stat.-, 35 Tex. 299. Cr. 577, 34 S. W. 932; Wesl v. State, 35 Tex. Cr. 48, 30 S. W. 1069. 4(J4 LOCAL OPTION ELECTIONS. [§ 409 claring the result of an election is required by statute it must be made. 44 Such a provision is held to be mandatory and a condi- tion precedent to the binding force of the law. 45 In Texas the county judge must select the newspaper for publication of the result though the order of the commissioners court does not re- quire him to do so. 46 But though an official is authorized to designate a newspaper for the publication of the order therein the fact that the order of publication does not specify any par- ticular newspaper does not invalidate such order. 47 And a mis- recital by the clerk in the proclamation of the result as to the date of the order for election will not invalidate the election. 48 Again an authorized publication in one newspaper of the order declaring the result does not invalidate a legal publication in an- other paper. 49 § 409. Result of election — publication for four successive weeks. A requirement that the order declaring the result shall be pub- lished for four successive weeks means for twenty-eight days. 50 And it may be shown that the publication of the order for three successive weeks as required by statute was prevented by an in- junction restraining such publication. 51 So a statute requiring publication of the result of an election is sufficiently complied with where there is a publication for three successive weeks when the 44. Jones v. State, 38 Tex. Cr. 533, of the resolution of prohibition is to 43 S. W. 981. be made. Moran v. Darby, 97 Mich. 43. Toole v. State, 88 Ala. 158, 7 180, 56 N. W. 347. So. 42. 48. Winston v. State, 32 Tex. Cr. 40. Johnson v. State, 52 Tex. Cr. 59, 22 S. W. 138. 624, 108 S. W. 083. 4J>. Wright v. State, 36 Tex. Cr. 47. Sinclair v. State, 45 Tex. Cr. 35, 35 S. W. 287. 487, 77 S. W. 621. 50. Phillips v. State, 23 Tex. App. The record of the proceedings 304, 4 S. W. 893. See also Williams of Ihe board of supervisors in order- v. State, 53 Tex. Cr. 156, 109 S. W. 1 declaring the result of an elec- 189. tion is fatally defective if it contains 51. Truesdale v. State, 42 Tex. Cr. no designation by the board of the 544, 61 S. W. 935. newspaper in which the publication §§410,411] LOCAL OPTION ELECTIONS. 465 publication is suspended by an injunction subsequently dissolved, the fourth publication being made immediately thereafter. 52 § 410. Result of election — statute silent as to time or manner of publication. "Where a statute r< quires the giving of a notice of the result of an election but prescribes do time within which it must be given it will be construeil as meaning within a reasonable time, the facts and circumstances in connection with the case being taken into consideration. 53 And where there is no provision as to the man- ner of publication it has been decided that a verbal proclamation may be sufficient. 54 § 411. Result of election — presumption and evidence as to publi- cation. In the absence of evidence to the contrary it will be presumed that the result of the election was publicly announced by one of the judges at the close of the polls as required by statute. 55 And the record relating to the adoption of the local option law need not show a return of the publication of the result, where it shows the publication was ordered and the burden to show a failure of such publication is on the defendant. 50 So the fact that the county judge certifies that publication of the result of an election was 52. Ex parte Brown, 35 Tex. Cr. 55. Puckett v. Snider, 110 Ky. 261, 433, 34 S. W. 131 ; McDaniel v. Slate, Gl S. W. 277. 32 Tex. Cr. 16, 21 S. W. 684, 23 S. 56. State v. Bush. 13G Mo. App. YV. 9S9. 608, 118 S. W. 670; State v. Oli- 53. State v. Weeks. 38 Mo. App. pliant. 12s Mo. App. 252, 107 S. W. 5G6. 32; State v. O'Brien, :;:. Mont. ls_>. 54. a proclamation at the court 00 Pac. 514. house don,- "that the local option :'.2 : state v. Oliphant, 128 Mo. App. bad carried and thai the major- 252, 107 S. W. 32; state v. O'Brien, ity of votes were againsl the sale of :!.". Mont. 4S-j. 90 Pac. 514. intoxicating liquors," has been held Proof of publication of result. a sufficient proclamation of the re- — Sec State v. Swearingen, 128 Mo. suit where the statute prescribes no App. 605, 1<>7 s. \\". l. Proof of pub- manner. Mackin v. State. 62 Md. lication of result under the Texas 044. statute see Johnson v. Stat". .".2 Tex. 4GG LOCAL OPTION ELECTIONS. [§ 412 made, in the absence of anything to the contrary will be sufficient proof that the same was made in a newspaper selected by him and under his direction. 57 Again where by law the publication of result need only be in one paper an offer of proof is not specific enough which is an offer to show that publication was not made in all the papers and is not confined to showing that publication was not made in any of them. 58 § 412. Contest of election — nature of right — statutes. The right to contest an election is frequently provided for by the local option statute. 59 And where there is no statutory au- thorization it is decided that courts have no jurisdiction to enter- tain election contests. 60 So in a recent case it is declared that Cr. 624, 108 S. W. 683; Gorman v. State, 52 Tex. Cr. 327, 106 S. W. 384 ; Walker v. State, 52 Tex. Cr. 293, 106 s. \V. 376; Ezzell v. State, 29 Tex. App, 521, 16 S. W. 782. 57. Johnson v. State, 52 Tex. Cr. 624, 108 S. W. 683. 58. State v. O'Brien, 35 Mont. 482, 90 Pac. 514. Publication of result in one news- paper held sufficient in Texas. Wright v. State, 37 Tex. Cr. 3, 35 S. W. 150, 38 S. W. 811. 59. Contest an action in rem.— The contest of an election is an ac- tion in rem and not in personam. Evans v. State, 55 Tex. Cr. 450, 117 S. W. 167. The legislature may provide that if a contest of a local option election is not filed within sixty days from the time of the law taking effect, the election will be conclusively presumed to he valid. Coats v. Blanding (Tex. Civ. App. 1910), 125 S. W. 627. Recount of votes does not pre- clude. — The recount of the votes of :i township by Hie election commis- sioners in an election on the license question does not preclude a contest of the election in the courts. Free- man v. Lazarus, 61 Ark. 247, 32 S. W. 680. <>«►• Nissen v. Farquhar, 121 La. 041. 46 So. 679. See also Hagens v. Police Jury of Caddo Parish, 121 La. 634, 40 So. 6/6. The extent of the power to consider an election contest is limited by the terms of the statute conferring the power. The proceed- ing is a special one and the tribunal exercising auch jurisdiction does not proceed according to the course of the common law but must resort to the statute alone to ascertain its powers and mode of procedure. So where a local option statute con- tained no provision as to contesting elections thereunder but contained a 1 provision that in all elections thereunder and in all matters and proceedings therein specified the pio- visions of the general election laws of the state should apply and under the latter only election contests were provided Un- which involved the right or title to an office it was decided § 113] LOCAL OPTION ELECTIONS. KI7 election contests are statutory and that in th< of a statute permitting them there can be no such contests, and thai where a statute attempts to authorize them but there are materia] omissi rendering it inoperative the couri will nol cure the defect by supplying the needed parts. 61 The contest is a special proceeding and the courts are limited in their investigation to such 3ubj as are specified in the statute. 62 So in Georgia it has been decided that the jurisdiction of the Superior ( 'ourt in cases of a contest of a local option election is limited to matters involved in the true ascertainment of the result of the election. 03 The right of appeal in such a case is statutory and a statute making the determination of a certain court final does not violate the Fourteenth Amend- ment to the United States Constitution. 64 And an election con- test is not a " cause " within the meaning of a constitutional pro- vision that, in all " causes " in a certain court the plaintiff or de- fendant shall be entitled to a trial by jury. 65 § 413. Contest of election — proceedings. Where parties seek to contest the validity of an election the facts which are relied upon should be set forth specifically. 66 And persons contesting an election on the ground that some of the votes cast were illegal have the burden of establishing such fact. 67 The that there was no authority for hear- 66. Oxley v. Allen (Tex. Civ. App. ing a contesl involving the validity 1908), 107 S. W. 945, holding it of a local option election. Bradburn not sufficient to allege that by reason v. Wasco County (Oreg. l!»10), 106 of the irregularity stated a large Pac. 1018. number of voters were denied the 61. Kehr v. Columbia (Mo. 1909), privilege of voting but that the num- 116 S. W. 428. ber and names of such persons should 62. Cofield v. Britton (Tex. Civ. be alleged or sonic sufficient excuse App. 1908), 109 S. W. 193. for not alleging them. 63. Harris v. Sheffield, 12S Ga. 67. McCormick v. Jester (Tex. Civ. 299, r.7 s. E. 305. App. inns,. 11;, s. \V. 278. 64. Savior v. Duel. 236 111. 429, In New York it is decided that 86 X. K. 119. if a town vote or local option is <:•". McCormick v. Jester (Tex. Civ. illegal and of no effect the parties App. 1908), 115 S. W. 278. seeking to invalidate the election must 468 LOCAL OPTION ELECTIONS. [§ 413 proceedings to contest an election are ordinarily provided for by the statute and where this is the case there should be a compliance therewith. 68 ^Yhere the law provides a remedy for contesting a local option election any other proceeding is held to be excluded unless it might be by an injunction as ancillary to the main pro- ceeding. 69 Where notice to the contestee of a contest is required by statute it must be given. 70 And a contest of such an election must be made within the time prescribed by statute. 71 And after the time for filing a contest has expired the matter of the regu- larity of the election and of all proceedings preliminary thereto is then at rest. 72 find their redress under the provision of the Liquor Tax Law that if the questions be not properly submitted at the town meeting they shall be again submitted at a special meet- ing and that the remedy is by appli- cation to have the submission de- clared illegal and improper and for a resubmission. Raymond v. Clement, 118 App. Div. (N. Y.) 528, 102 N. Y. Supp. 1070, aff'd 194 N. Y. 560, 87 N. E. 1126. Right of appeal under Kan- sas Rev. St. 1899, § 1674, sub. 4 (Am. St. 1906, p. 1217). See Haynes v. Cass County Court, (Mo. 1909), 115 S. W. 1084. As to contest under Kentucky St. 1909, § 2500, subd. 2, see Derick- v. Conlee (Ky. 1909), 117 S. W. 955. Election held void— effect of supersedeas. — Where an election was had and held void by the court and after such judgment was rendered a supersedeas was had and nn appeal taken it was decided that by the sup- ersede;,-, matters were in the same condition as before the judment was rendered declaring the election void and that a licensee to whom a license was issued after the election and be- fore such judgment was rendered was thereby protected until the appeal was decided or his license expired. Com- monwealth v. Weisenburgh, 126 Ky. 846, 102 S. W. 846. Right to intervene in an election contest under the Georgia Code See Miller v. Drake, 113 Ga. 347, 38 S. E. 747. 69. Ex parte Mayes, 39 Tex. Cr. 36, 44 S. W. 831. 70. Norton v. Alexander, 28 Tex. Civ. 466, 67 S. W. 787. Though service of notice of a contest should be made on the eounty attorney yet in the case of his ab- sence from the state it may be made on his assistant at the county at- torney's office. McCormick v. Je (Tex. Civ. App. 1908), 115 S. W. 278. Notice and service of petition of contest under Texas statute see Mes- ser v. Cross, 26 Tex. Civ. App. 34, 63 S. W. 169. 71. Terry v. State (Tex. Cr. 1000), 117 S. W. 801. Sec Evans v. State 55 Tex. Cr. 150, 117 S. W. 107. 72. Cole v. Commonwealth, 30 Ky. Law Rep. 385, 98 S. W. 1002. §§414,415] LOCAL OPTION ELECTIONS. H;;, § 414. Who may contest election. In New Fori ii is decided that the validity of a town election resulting against local option is not a matter which a citizen can attack. 73 Win re however a person has sufficient standing to at- tack an invalid town election authorizing local option it is de- cided that he is entitled to a mandamus compelling the canvassers and inspectors to reconvene and reject the ballots cast upon that question. 74 But where a special town meeting has duly and regu- larly passed upon the question of local option, errors committed in the submission of then qu< -tions to a prior biennial town meeting may be deemed to have been rectified, and, therefore, the court will not compel the board of canvassers to reconvene and reject the local option ballots which were cast at the biennial town meet- ing. 75 § 415. Resubmission of question. Under the statute in New York a resubmission of the question may be ordered where it was not submitted in the first instance in accordance with the provisions of the statute. 70 So where the notice includes a question in addition to the form provided for by the statute this fact is to be considered as favoring a resubmission as it may have confused and misled the voters. 77 But a failure to publish in the newspapers a notice of a submission of local option questions to voters has been held no reason for setting aside tin- election and resubmitting the questions it appearing that such neglecl had caused no prejudice and that a full vote had been had. 78 "'.i. People ex rel. Barth v. Board of Town Canvassers, 32 Misc. R. of Town Canvassers, 32 Misc. R. (N. (N. V.) 12:5. 66 X. Y. Supp. 107. Y.i 123, 66 \. Y. Supp. 100. 7*;. Matter of Munson, 95 App. Div. 74. People ex rel. Barth v. Board (N. Y.) 23, 88 X. Y. Supp. 509, of Town Canvassers, 32 Misc. II. holding that such order is a court (N. Y.) 123. 66 N. Y. Supp. 100. ov.lcr. Compare People ■< rel. Caffrey v. 77. Matter of Smith, 44 Misc. R. Mosso, 30 Misc. R. (N. Y.) 164, 63 (N. Y.) 384, 89 X. Y. Supp. 100G. N. Y. Supp. 588. 78. Matter of CHara, 40 Misc. R. 75. People ex rel. Barth v. Board (X. Y.) 355, 82 X. Y. Supp. 203. 47() LOCAL OPTION ELECTIONS. [§§ 416,417 § 416. Resubmission of question continued— procedure. In resubmitting the question a compliance with the provisions of the statute in respect thereto is essential. So where a petition for resubmission is required by statute it is a condition precedent thereto. 79 And a resubmission is void unless the petition therefor is made by the requisite number of voters as required. 80 And where the petition therefor is not filed until after the time pre- scribed by statute therefor the refusal of the town clerk to print the ballots is held to be justified. 81 Where the petition answers the requirements of the statute the board of supervisors is held in Michigan to have no discretion which authorizes them to refuse to call an election. 82 In a proceeding to set aside the canvass and return of the votes cast at a town meeting upon the excise questions and for a resubmission of them the town board being the canvass- ing board is a proper party to such proceeding as a board and its members are proper parties as individuals and will be allowed to intervene. 83 In the case of an illegal resubmission the remedy of one holding a certificate who is aggrieved thereby is held to be by certiorari against the county treasurer for his unjustifiable refusal to issue him a further certificate and not in an application for a special town meeting and a new submission. 84 § 417. Conclusiveness of declaration of result — collateral attack. Where the result has been ascertained and declared by the See People ex rel. Cane v. Chandler, Clerk of Town of Bambridge, 26 41 App. Div. (N. Y.) 178, 58 N. Y. Misc. R. (N. Y.) 220, 56 N. Y. Supp. Supp. 794. 64. 70. Matter of Krieger, 59 App. Div. 82. Reefer v. Board of Supervis- (N. Y.) 346, 69 N. Y. Supp. 851. ors of Hillsdale County, 109 Mich. so. People ex rel. Decker v. 645, 67 N. W. 981. Decker, 28 Misc. R. (N. Y.) 699, 60 83. Matter of Bertrend, 40 Misc. R. N. Y. Supp. 60; Matter of Getman, (N. Y.) 536, 82 N. Y. Supp. 940. 28 Misc. R. (N. Y.) 451, 59 N. Y. 84. Matter of Getman, 28 Misc. R. Supp. 1013. (N. Y.) 451, 59 N. Y. Supp. 1013. 81. People ex rel. Hovey v. Town < lis I LOCAL OPTION ELE< HONS. 471 proper officers or tribunal it is conclusive until reversed by some superior tribunal and can uol be attacked collaterally. 86 The ascertainment and declaration of the result of an election being in accordance with law it is prima facie correcl and is concluf until by a proper action broughl for the purpose the true result otherwise should be ascertained and declared by a judicial de- termination. It cannot be collaterally impeached. 86 So where an official may order an election without a petition for that purpose when the order has been entered authorizing such an election and the election has been held thereunder the order is conclusive and the courts will not go behind it. 87 Unless the result of an election is changed or rendered doubtful it will not be set aside on account of mere irregularities. 88 So the resolution of the board of super- visors, adopted in conformity to law, and the record thereof being regular, that an election under the local option law has been prayed for by the requisite number of electors, is conclusive of the pre- liminary steps necessary to set the board in motion. 89 § 418. Judicial notice of adoption — necessity of proof of. Although the rule prevails in same states that courts will take judicial notice of the fact that local option has been put in force in a certain locality, 90 yet in others the rule prevails that courts will not take judicial notice of the happening of the conditions 85. Woodward v. State, 103 Ga. See State v. O'Brien, 35 Mont. 482, 496, 30 S. E. 522; State v. Emery, 90 Pae. 514. 98 N. E. 768, 3 S. E. 810. !M »- Courts take judicial notice of 86. State v. Cooper, 101 N. C. 684, a local law applicable to a particu- 8 S. E. 134. 1'ir county. Badgett v. State, 157 87. Drechsel v. State, 35 Tex. Cr. Ala. 20, 48 So. 54. 577, 34 S. W. 932. Courts take judicial cognizance of 88. State <:r rel. Welsh v. State a vote against license. Thomas V. Hoard of Canvassers, 79 S. C. 246, 60 Commonwealth, 90 Va. 92, 17 S. E. S. E. (i'.iit. ~ sS - 89. Thomas v. Abbott, 105 Mich. In Mississippi it was provided 687, 63 N. W. 984, citing Friesner by the code of \*'M t hut the courts v. Common Council of City of Char- should take judicial notice of the re- lotto, 91 Mich. 504, 52 X. W. IS. suit of local option elections. Puckett v. State, 71 Mi-. 192, 14 So. 452. ±72 LOCAL OPTION ELECTIONS. [§ 418 which bring into operation the local option law but that their hap- pening must be both pleaded and proved by one who wishes to take the benefit of them. 91 So it has been held that an allegation in an indictment that a local option law is in force in a certain district must be proved. 02 But it is decided that it is not for the jury to determine whether or not local option has been adopted but that it is for the court. 93 And the evidence to show that an election has been held is properly addressed to the court and not to the jury and the court having found that an election had been held and resulted in the adoption of the law it is proper to in- struct the jury that the law is operative in the territory for which the election was held. 94 And the court may instruct the jury as to when the law went into effect. 05 But where the orders exhibited in And in a later ease in this state it has also been decided that the court will take judicial notice that prohibition is in force in a certain county and that there could not be a lawful sale of intoxicants therein. Irby v. State, 91 Miss. 542, 44 So. 801. 91. State v. Van Vliet, 92 Iowa 476, 61 N. W. 241. Must prove adoption of local option except possibly where the proceedings are in the court issuing the order announcing its adoption. Gay v. Eugene (Oreg. 1909), 100 Pac. 306. In Texas it has been declared that the court should in every case of a prosecution require the introduction of the formal orders of the commis- sioner's court of their several coun- ties putting local option into effect, Bills v. State (Tex. Cr. 1909), 117 S. W. In Alabama it is decided that in a prosecution for a violation of the lo- cal option law the burden is upon the state to show that an election has been held and that the result was against the sale of liquor. Long v. State (Ala. 1910), 51 So. 636. The judge making the order may properly be asked whether in obedi- ence to such order, which has been identified by him, an election was held in territory referred to therein. Long v. State (Ala. 1910), 51 So. 636. 92. Butler v. State, 25 Fla. 347, 6 So. 67. The state where it alleges the pas- sage and adoption of a local option law must prove the same. Byrd v. State, 51 Tex. Cr. 539, 103 S. W. 863. 93. State v. Brown, 130 Mo. App. 214, 109 S. W. 99. 94. State v. O'Brien, 35 Mont. 482, 90 Pac. 514. The court may properly charge the jury that a law has been put into force in a certain territory where there has been a compliance with the provisions of the statute necessary to put it in force. Sebastian v. State, 44 Tex. Cr. 508, 72 S. W. 849. 95. Combs v. State, 81 Ga. 780, 8 S. E. 318. § 419] LOCAL OPTION ELECTIONS. 473 evidence are sufficient to pu1 the local option in force in a certain county it is immaterial whether the court instructed the jury local option was in force in such county or assumed in the charge that it was in effect. ; " : § 419. Proof of adoption of local option; sufficiency of. Except in those states in which it is decided thai the courts will take judicial notice of the adoption of local option proof of its adoption is generally provided for by statute and in each state what is sufficient proof will depend either upon the terms of the local option statute or of the election law where the former con- tains no such provision. Thus in Florida a copy of the record of the result of the canvass of the returns of the election as made by the county canvassing board and recorded in the minutes of the proceedings of the board of county commissioners duly certified to by the clerk of the circuit court for such county in which an election shall have been held is to be taken under the Florida statute as prima facie evidence that such elect ion was legally called, conducted and holden. 97 In Kentucky the entry of certificate of the canvassing board is under the Kentucky statute prima facie evidence of regularity of the procedure theretofore held and if there is nothing to rebut this an averment of regularity is sus- tained. 98 In an earlier case in this state the certificate of the election was held to be the best evidence there being nothing in the local statute as in the general local option law making the certifi- cate of election prima facie evidence of the result.' 11 ' In Michigan it has been decided thai the existence of a local option law within a county is sufficiently proved by the introduction in evidence of 86« Cantwell v. State, 47 Tex. Cr. regularities in its conduct. 511, 85 s. W. it). J»s. Blackwell v. Commonwealth, 21 5>t. Barton v. State, 13 Pla. 177. 31 Ky. Law Rep. 1240, 54 S. W. 843. So. 361, holding that where such '.*'■*■ Neighbors v. Commonwealth, copy is introduced an accused ••an- 10 Ky. Law Lop. 594, S. YV. 7 is. not contest the elect inn for mere ir- 4 74 LOCAL OPTION ELECTIONS. [§ 419 a certified copy of the preamble and resolution of the board of supervisors ordering prohibition in the county. 1 In Mississippi it has been determined that the report of the commissioners whose duty it is to canvass the returns is the sole evidence of the result under the statute and cannot be attacked collaterally. 2 In Mis- souri evidence of the records of the county court showing the re- sult of the election together with evidence of the required publi- cation has been held sufficient. 3 1. People v. Whitney. 105 Mich. »• State v. Searcy, 39 Mo. App. 622, 63 N. W. 765, citing Friesner 394. v. Common Council, 91 Mich. 504, 52 In an earlier case in this state it N. W. 18; People v. Adams, 95 Mich. was held that it might be proved by 541, 55 N. W. 461. the certificate of the deputy county 2. Conrad v. State, 70 Miss. 733, 12 clerk instead of that of the county So. 851. clerk. In re Rothwell, 44 Mo. App. 215. CIVIL DAMAGE ACTS. 47- CHAPTER XVIII. CIVIL DAMAGE ACTS. Section 420. Civil damage acts — constitutionality of. 421. Construction of acts generally. 422. Same subject — application of rules. 423. " Person aggrieved " — " or other persons ". 424. Statute no extra-territorial effect. 425. License no protection against operation of statute. 420. Effect of repeal of statute — subsequent act as to notice. 427. Sale must be unlawful. 428. Negligence and contributory negligence. 42!). Intoxication must be proximate cause. 430. Proximate cause — application of rule. 431. Proximate cause — where intoxicated person commits a crime and is imprisoned. 432. Proximate cause — intoxicated person injured or killed as re- sult of altercation. 433. Proximate cause — question for jury. 434. Sale must have contributed to or caused intoxication — prox- imate cause — must be sale to individual causing injury. 435. Sale by defendant need not be sole cause. 430. Sales by agent of defendant. 437. Sales by agent of defendant — exemplary damages. 438. Sales l>\ agent -sale of business to him not bona fide. 43!). Joint liability of defendant. 440. Joint liability of defendant but one satisfaction. ill. Owner or lessor — statute making him liable — construction of. 442. Owner bound by knowledge of agent. 443. Owner or lessor- exemplary damages. 444. Owner — extent of lien against. 445. Notice not to sell. 440. Notice not to sell — effect of — damages. 447. Sale to prohibited classed generally — minors — intoxicated per- sons. 448. Sales to minor — action by parents generally. 476 CIVIL DAMAGE ACTS. [§ 420 Section 449. Sales to minor — action by father. 450. Sales to minor — action by mother. 451. Sales to minor — consent of parents as bar. 452. Sales to minor — exemplary damages. 453. Sales to habitual drunkards. 454. Sales to intoxicated persons. Sec. 420. Civil damage acts — constitutionality of. In view of the evils resulting from excessive indulgence in intoxicating liquors, such as impoverishment of families, in- juries to others, and the creation of public burdens, the legis- lature in many states have sought to better control the traffic by enacting statutes giving a right of action in favor of persons injured by the intoxication of another against the one selling or furnishing the liquors causing or contributing to such in- toxication. These statutes in most cases having in view the pro- tection of the wife and children of the person intoxicated, and the fact that they are more or less deprived of their means of support by the condition of that person are wider in their scope in some states than they are in others. Some statutes are mainly confined to the giving of a remedy to the family of such person, while in others a right of action is given to any person who is injured in his person or property by the fact of the intoxication of another or by some act of his while in that condition. Acts of this character tend to a better control of the traffic, and to re- duce intemperance and the formation of intemperate habits. By imposing a civil liability upon the seller he is apt to be more careful in his sales, and to have more regard for the home of the buyer and those who are dependent upon him. Statutes of this character tend to place the traffic upon a higher plane, to elevate the tone of the community, are a wise exercise of the legislative power and have generally been sustained as constitutional. 1 !• Indiana. — Horning v. Wendell, 480: Kraeh v. Heilman, 53 Ind. 517; 57 Tnd. 171, citing Barnaby v. Wood, Collier v. Early, 54 Ind. 559; Koerner 50 Ind. 405; English v. Beard, 51 Ind. v. Oberly, 56 Ind. 284. § 421] CIVIL DAMAGE ACTS. 477 "The right of the legislature to control the use of a traffic in intoxicating liquors bring established, its authority to impose liability upon those who exercise the traffic, or who sell or give away intoxicating drinks, for consequential injuries to third persons, follows as a necessary incident." 2 The question whether a sale is lawful or unlawful under the laws of the state does not affect the validity of such an act. 3 So a statute providing in case of a sale to a minor for a liability for not less than a certain Bum, is not open to the objection that in providing for a fixed sum, without proof of actual damages, it amounts to a taking of property without due process of law. 4 And a statute under which a licensed seller is made responsible for an assault made by a buyer of such liquors from him where the intoxication of the buyer was caused by is constitutional. 5 § 421. Construction of acts generally. At common law there was no right of action against the seller of liquor for an injury arising from the intoxication of the pur- chaser. 6 The right is a statutory one and statutes of this char- Kansas. — Werner v. Edmiston, 24 "That the creation of rights and Kan. 147. remedies in these civil damages acts Massachusetts. — Moran v. Goodwin, is a proper exercise of legislative 130 Mass. 158, 39 Am. Rep. 443. power has been so long settled that Michigan. — Sisson v. Lampert no citation of authorities is neces- (1910). 124 \\ W. 512. Kreiter v. sary." Kennedy v. Garrigan (S. ]). Nichols, 28 Mich. 496. 1909), 121 X. W. 7s::. per Smith. J. New Hampshire.— Bedore v. Xew- -• Bertholf v. O'Reilly, 74 X. Y. ton, 54 N. H. 117. 509, 524, per Andrews, J. Neio York.— Bertholf v. O'Reilly, :*• Bertholf v. O'Reilly, 74 X. Y. 74 N. Y. 509, 30 Am. Rep. 323; 509, 30 Am. Rep. 323. See also Franklin v. Scliermerliorn. S llun Moran v. Goodwin, 130 Mass. 158, 39 112; Raker v. Pope, 2 Hun 556. Am. Rep. 443. Ohio. — Sibila v. Bahney, 34 Ohio 4. Cramer v. Danielson, 99 Mich. St. 399. 531. 58 X. \Y. 476. Routh Dakota. — Garrigan v. Ken- 6. Howes v. Maxwell, 153 Mass. nedy, 19 S. D. 11, 101 X. W. 1081. 333. 32 X. E. 152. Vermont.— Stanton v. Simpson, 48 ,: - Cruse v. Aden, 127 111. 231, 20 Vt. 628. N. E. 73, 3 L. R. A. 327; Quinlan v. Wisconsin. — State v. Ludington, 33 Welch, 141 X. Y. 158, 36 X E. 12, Wi8< 10 7. aff'g 69 Hun 584, 23 X. Y. Supp. 47S CIVIL DAMAGE ACTS. [§ 421 acter are to be strictly construed and not to be extended beyond the clear import of their terms, and a plaintiff seeking a remedy thereunder must bring himself clearly within the terms of the statute. 7 So in Texas it is held that suits to recover under civil damage acts are in the nature of a recovery of statutory penalties. 8 So it is declared in a recent case: " One thing must be constantly borne in mind when considering these civil damage acts — the right and the remedy created by these statutes are exclusive. No right of action exists save that expressly given by the statute and and the remedy prescribed cannot be enlarged except by further slative enactment. 9 But while such a statute should in its construction not be enlarged, yet it should be so construed where the language is clear and explicit as to give it its true meaning having in view the purpose of the statute. 10 In the construction 963; Paulson v. Langness, 1G S. D. 471, 93 N. W. 055. Such a statute gives a cause of ac- tion where none existed at common law and renders a person liable to suit in damages where the principles of the common law do not. Bacon v. Jacob, 63 Hun (X. Y.) 51, 17 N. Y. Supp. 323. 7. Schulte v. Sehleeper, 210 111. 357, 71 N. E. 325, aff'y Schulte v. Menke, 111 111. App. 212; Nagle v. Keller, 141 111. App. 444; Cruse v. Aden, 127 111. 231, 20 N. E. 73, 3 L. R. A. 327 : Fentz v. Meadows, 72 111. 540: Meidel v. Anthis, 71 111. 241 ; Hayes v. Phelan, 4 Hun (N. Y.) 733. Not a penal statute.— In New York the Civil Damage Act of 1873 was held not to be a penal statute but one creating a right of action for damages which was unknown at the common law. Quinlan v. Welch, 141 X. Y. 158, 36 N. E. 12, aff'g 69 Hun 584, 23 X. Y. Supp. 963; Reinhardt v. Fritzsche, 69 Hun (X. Y.) 565, 23 X. Y. Supp. 958. Such an act is said however to be of a highly penal character and one which should receive a strict construc- tion. Cruse v. Aden, 127 111. 231, 20 X. E. 73, 3 L. R. A. 327; Schulte v. Menke, 111 111. App. 212. And in Massachusetts it has been decided that the action under the statute of that state is in the nature of a penal acion. Sackett v. Ruder, 152 Mass. 397, 25 X. E. 736, 9 L. R. A. 391. See O'Connel v. O'Leary, 145 Mass. 311, 14 X. E. 143. 8. Jessee v. De Shoug (Tex. Civ. App. 1907), 105 S. W. 1011, citing Johnson v. Rolls, 97 Tex. 453, 79 S. W. 513. Meaning of " intoxication ". — In Illinois it has been held not error to instruct the jury that as a matter of law, the word " intoxication used in the Dramshop act, means " excited to frenzy." Smith v. People, 141 111. 447, 31 X. E. 425. »• Kennedy v. 1909), 121 X. W. 10. Gardner v. 50 Atl. 892. Garrigan, (S. D. 783, per Smith, J. Dav, 95 Me. 558, § 422] CIVIL DAMAGE A< I 47!i of a statute of this character as in the case of others, the rule pervails thai the courts are not confined to the Literal meaning the words of the statute, but the intention may be collected from the necessity or objects of the act, and its words may lie enlarged or restricted according to its true intent. The court should not only consider the title of the act but also every other part of the statute. 11 And where the statute creates a liability for an injury inflicted by "any intoxicated person," the liability for a wrong inflicted by such a person is an absolute one and an inquiry whether such injury would have been inflicted but for the intoxication is by the statute precluded. 12 § 422. Same subject — application of rules. A statute creating a liability on the part of one who shall sell or give liquor is not construed as including the case of a person who, as an act of hospitality, at his own home or elsewhere, merely gives a drink to another without any consideration what- ever pecuniary or otherwise. 13 AVhere such a statute only pro- vides for an action against the seller of liquor, or against the owner of the place where it is sold, to recover damages by reason of sales to particular persons, it will not be construed as author- izing an injunction to prevent the use of the building for future sales. 14 And where the statute only authorizes a recovery where liquor is sold to a person there can be no recovery where the liquor was given to him. 15 And where ;i statute gives a right of action to a wife on the bond of a licensed dealer for injury to her means of support, it is held essential to entitle her to recover 11. (ins,, v. Aden, 127 111. 231. 20 Whalen, 149 I*. S. 157, 13 Sup. Ct. \. E. 7.:. 3 L. R. A. 327. S22. 37 L. Ed. 686. 12. Bacon v. Jacob, 63 Hun (X. 15. Brannan v. Adams, 76 111. 331. V.) 51, 17 X. Y. Supp. 323. One may be liable for tbo pivinp 13- Cruse v. Aden. 127 111. 231. 20 of liquors the same as though sold, N. E. 73, 3 L. R. A. 327. where statute so provides. Webb v. 14. Northern Pac. R. R. Co. v. Jugenheimer, 56 Iowa 11, 6 X. YV. 673. 41 Am. Rep. 77. 4S0 CIVIL DAMAGE ACTS. [§ 422 that the sale causing the injury complained of must have been by a licensed dealer and that if made by an unlicensed dealer there can be no recovery. To authorize a recovery the case must be brought within the terms of the statute. 16 Again a statute giving a right of action to a person upon whom the injured one may be dependant confers no right upon one upon whom the in- jured person was not dependant previous to such intoxication. 17 In Massachusetts it has been decided that the action under the statute is one for a penalty or forfeiture and must be brought within the time prescribed by a statute in reference thereto. 18 § 423. " Person aggrieved " — " or other persons ". In a legal sense a person is aggrieved by an act when a legal right is invaded by the act complained of. 19 The phrase " person aggrieved " as used in such a statute has been held to simply relate to the classes of persons that are entitled to sue and not to require a person to prove that he or she was actually aggrieved by the sales complained of. 20 Under a statute giving a right of action to " any person aggrieved " a widow is a person aggrieved by the death of her husband. 21 And a wife is a " person ag- grieved. 22 A parent is also an " aggrieved " person where in- toxicating liquor is sold to a minor child or where in a violation of the statute a liquor seller permits such a child to enter or remain upon the premises where such liquor is sold. 23 But a father with whom an adult unmarried son lives is not a person " aggrieved " so as to have a right of action for expenditures 16. Paulson v. Langness, 16 S. D. l»- Peary v. Goss, 90 Tex. 89, 37 471. 03 X. W. 055. S. W. 317. 17. Hollis v. Davis.. 50 N. H. 127, 2<>. Tipton v. Thompson, 21 Tex. wherein it is said that to create such Civ. App. 143, 50 S. W. 641. a right there should be some such 21. Fink v. Garman, 40 Pa. St. 95. words as "may become dependent by 23 - Wright v. Tipton, 92 Tex. 168, reason of such injury " or " may 46 S. W. 029. afterwards become dependent." 23 « Peary v. Goss, 90 Tex. 89, 37 is. O'Connell v. O'Leary, 145 Mass. S. W. 317. 311. 14 N. E. 143. §§424,425] CIVIL DAMAGE ACTS. jv- and loss of time in taking care of such son while recov< ring from injuries sustained by him as the resull of the sale to him of in- toxicating liquors. 24 And one who while lying drunk in a saloon is assaulted by a stranger is uol entitled to recover then for from the saloon-keeper, he not being a person "aggrieved" within the meaning of the statute. 26 The words "or other persons" cover all persons as used in a civil damage act, 26 and includes a hus- band injured by the intoxication of his wife. 27 § 424. Statute no extra — territorial effect. Such a statute does not have an extra-territorial effect and where the sale causing the intoxication is made in one state but the injurious act causing an injury to a person or property is done in another state the person sustaining such injury cannot recover in the state where the sale was made. 28 § 425. License no protection against operation of statute. As we have stated in a preceding part of this work, a license is a mere permit to conduct the traffic subject to such laws as are in force or such future valid enactments as the legislature in the legitimate exercise of its power may see fit to make. 29 It there- fore follows that a license is no protection against the operation of the statute and no defense to an action by one who has been in- jured by the act of an intoxicated person to whom liquors pro- ducing such intoxication were sold by the defendant. 30 24. Venn v. Creaton, 138 Pa. St. 27. Landrum v. Flannigan, 60 48, 20 Atl. 865, 9 L. R. A. 814. Kan< ,;;,■ -, ; ,, :l( , 7 -.._ 28. Goodwin v. Young, 34 Hun 2-". Anderson & Co. v. Diaz, Ark. 606, 92 s. \v. 861, citing Gage v. Earvey, 66 Ark. 68, 4S S. \Y. 898, (N ' Vl 253, 43, I.. R. A. (N. S.) 143, and holding 29 ' s "'' § 192 herein, also thai the keeper of a saloon is not 30. Roth v. Eppy, so 111. 283; liable for an assault upon one of his Jones v. Bates, 26 Neb. 693, \2 X. W. patrons committed by his bar-tender 751, 1 !.. R. A. 195; Roose v. Perkins, not in the scope of his employment. !> Neb. 304, 2 N. W. 71">. :!1 Am. Rep. 2e. Flower v. Witkovsky. 69 Mich. 409. 371, 37 N. W. 364. 482 CIVIL DAMAGE ACTS. [§§ 420,427 § 426. Effect of repeal of statute — subsequent act as to notice. The right of action being purely statutory, is held to fall with the repeal of the statute without a saving clause or a general law saving pending suits unless the right has been carried into judgment or unless the section in the old act is substantially re-enacted in the repealing act so that there has been no time when the repealed section was not the law. 31 But where a right of action has accrued under a statute it is not taken away by the passage of another act subsequent thereto which recognizes such a right, but imposes as a condition that notice to a seller shall be given in order to render him liable. 32 § 427. Sale must be unlawful. It may be stated generally that the sale must be one which is 31. Curran v. Owens, 15 W. Va. 208 ; See also Faired v. Drees, 41 Wis. 186, following Dillon v. Linder, 36 Wis. 344. See Roth v. Eppy, 80 111. 283; Mulcahey v. Givens, 115 Ind. 286, 17 N. E. 598. 32. Quinlan v. Welch, 141 X. Y. 158, 36 N. E. 12, affg 69 Hun 584, 23 X. Y. Supp. 963. The court said, per Bartlett, J.: "The repeal of a penal statute discharges offenses committed before such repeal and proceedings based thereon. 1 Hale's pleas of the Crown 2!>1 ; Hartung v. People, 22 N. Y. 99, 100; Curtis v. Leavitt, 15 Id. 229: Butler v. Palmer, 1 Hill 324. This statute of 1873 being in no sense penal it falls within the rule which has long existed and was recognized by this eourt in Re Miller, 110 N. Y. 216, 18 X. E. 139. The question presented in that case was whether a beneficiary who had become liable to pay a tax under the Collaterial In- heritance Act of 1885 (ch. 483) was released from the payment thereof by chap. 713, Laws of 1887, which was enacted before payment of said tax and under the terms of which the tax was not imposed. Judge Danforth, at page 223 says, ' The surrogate and the Supreme Court, however, thought the case made by the peti- tioner should be decided as if the act of 1887 had not been passed, and we are of that opinion. The rule is con- sidered settled in this state that neither original statutes nor amend- ments have any retroactive force, un- less in exceptional cases the legisla- ture so declare.' Dash v. Van Kluck, 7 Johns 4, 7, 5 Am. Dec. 291, San- ford v. Bennett, 24 X. Y. 20; People ex rel. Xewcomb v. McCall, 94 Ld. 587-590. In the latter case Judge Earl says at page 590 : ' It is a general rule often reiterated and laid down in reported decisions that laws should be. so construed as to be pros- pective and not retrospective in their operations unless they are specially made applicable to past transactions and to such as are still pending. ' We, therefore, hold that plaintiff's cause of action was not affected by CTN II. DAMAGE ACTS. 183 § 427] in violation of law. 88 And whore the statute provides as to the class of sales which render the seller liahle, as ii generally does, the sale musl be one which is in violation of the Btatute to au- thorize a recovery. 84 A statute conferring the right to recover for an injury resulting from an unlawful sale, doi - nol refer to a sale which is unlawful under the particular act, but to one which is unlawful under any statute. 35 So where a statute provides for a recovery for an injury resulting from an unlawful selling of liquors, it is decided that no right of action is conferred to recover for an injury resulting from the giving away of liquors except where by statute such giving away is made unlawful selling. 36 And a liquor dealer or his sureties are not liable for loss of maintenance and support caused by a murder committed by the servant of the seller, the bond being conditioned for injury to means of support caused by an unlawful sale of liquor or damage sustained to person, property or means of support on either chapter 401 or 403 of the Laws of 1892." See also Reinhardt v. Fritzsche, 69 Hun (N. Y.) 565, 23 N. Y. Supp. 958. :?:?• Peacock v. Oaks, 85 Mich. 579, 48 N. W. 1082; Baker v. Beckwith, 29 Ohio St. 314: Russell v. Tippin, 12 Ohio C. C. 52. Unlawful sale by druggist- instruction. — Where a defendant is only authorized to sell liquor for medicinal purposes an instruction that if he made sales of intoxicating liquor to defendant's husband for any other purpose than those provided by the statute he would be liable in damages is proper. Lockard v. Van Alstyne, 155 Mich. 507, 120 N. W. 1. distinguishing Merrinane v. Miller, 148 Mich. 412. Ill X. W. 1050, and also holding thai testimony thai a druggisl sold beer to be drunk upon the premises and that he kepi a re- frigerator in which such beer was stored is competent as bearing upon the question of the good faith of the defendant in making sales and whether lie was conducting his busi- ness lawfully. And it was also held that where a defendant claims thai liquor was only sold for medicinal purposes it was proper to show by the testimony of the employer of the plaintiff's husband that the latter drew money from him nearly every day and went immediately to defend- ant's store and came back with whisky and drank it in the shop and was intoxicated. 84. Mitchell v. Ratts, 57 1ml. 259; Myers v. ('on way. ;-)."; Iowa 166; Rogers v. Hughes, 87 Ky. 185, 8 S. W. hi. :•••-•• Sibila v. Bahney, 34 Ohio St. 399. :t«s. Baker v. Beckwith, 29 Ohio St. 314. 484 CIVIL DAMAGE ACTS. [§§ 428,429 account of the use of liquor sold. 37 As tending to show that the sale of liquor to the slaver of the husband of the plaintiff was unlawful evidence is admissible that such person was in the habit of becoming intoxicated. 38 § 428. Negligence and contributory negligence. The cause of action is statutory and not in any way based upon the negligence of the injured party. 39 So one who with knowl- edge of his son's intemperate habits permitted him to take a horse to drive to a neighbor's, was held not to be guilty of contributory negligence which would preclude him from recovering the value of the horse whose death was caused by the overdriving of him by the son while intoxicated. 40 And in a suit by a wife to recover from a liquor dealer and his sureties, damages for injuries sus- tained by her by being thrown from a carriage, in which she was riding with her husband, by reason of its being overturned through the negligence of intoxicated persons, the contributory negligence of the husband, if any, was held not to enter into the issue. 41 § 429. Intoxication must be proximate cause. It is a general rule that in order to render a defendant liable the intoxication caused or contributed to by him shall have been the proximate cause of the injury complained of. 42 Where the 37. State ex rel. Endricks v. 111. App. 212; Schmidt v. Mitchell, Knotts, 24 Ind. App. 477, 56 X. E. 84 111. 195, 25 Am. Rep. 446; Hart 941. v. Duddleson, 20 111. App. 612; John- •"•*. Doty v. Postal, 87 Mich. 143, son v. Drummond, 16 111. App. 341. 4«i X. \V. 534. Indiana.— Dudley v. State, 40 Ind. :;;>• Wright v. Treat, 83 Mich. 110, A. C. 74, 81 N. E. 89. 47 X. W. 213. Iowa. — Jarozewski v. Allen, 117 See § 428 herein as to action by Iowa 633, 91 X. W. 941. intoxicated person. Massachusetts. — McXary v. Black- 40. Bertholf v. O'Reilly, 8 Hun burn, 180 Mass. 141, 41 N. E. 885. (X. Y.) 16, aff'd 74 N. Y. 509. Pennsylvania.— Roach v. Kelly, 194 41. Wright v. Treat, 83 Mich. 110, Pa. St. 24, 44 Atl. 1090, 75 Am. St. 47 X. W. 2 13. Rep. 685; Bradford v. Boley, 167 Pa. 4ii. Illinois.— Schulte v. Schleeper, St. 506, 31 Atl. 751. 210 111. 357, 71 X. E. 325, aff'g 111 § 430] CIVIL DAMAGE ACTS. 435 injury is caused by the dired and independenl act of a third person and not from the intoxication or anything consequent thereupon there can be no recovery. The intoxication must he the proximate cause of the disability. 48 In some cases, however, it has been decided that where the statute creates a liability for any injury done by any intoxicated person a plaintiff need not show nor should the jury speculate upon the probabilities whether the intoxication was the natural cause of the act. It is only neces- sary to show the intoxication. 44 And where a man committed suicide while intoxicated, it is decided in a recent case in Iowa that the wife need only show such facts and need not show that he would not have committed the act but for the sale to him of the liquor by the defendant. 45 And in a case in Illinois it is decided that where a person is killed while intoxicated it cannot be set up in defense that it was the result of an intervening agency which caused the death as a statute allowing a recovery by the widow for injury to her means of support in such a case is not to be construed as meaning that intoxicating liquor alone, ex- clusive of other agency, shall do the whole injury, but the statute is to be construed as designed for a practical end and to give a substantial remedy. 10 § 430. Proximate cause — application of rule. If a person is in an intoxicated condition and by reason thereof is unable to exercise proper caution or take proper care of himself in consequence of which he is killed, intoxication would be the proximate cause. 47 So the sale of liquor to one while intoxicated See also cases cited in the following i • • Brockway v. Patterson, 72 sections. Mi.1i. 122, 10 X. \Y. 192, 1 L. R. A. That intoxication was proximate 708. cause of the death of a husband and •«•">. Bistline v. NTey Bros., 134 Iowa father is sufficiently shown by plead- 172. Ill \. \\". 422. ing. See Wall v. State ex rel. Ken- n;. Schroder v. Crawford, 04 111. dall, 10 Ind. App. 530, 38 \. E. 190. 357, 34 Am. Rep. 236. 43. Schulte v. Schleeper, 210 ill. it. Meyer v. Butterbrodt, 146 Til. 357, 71 \. E. 325, aff'g Schulte v. 131, 34 X. K. 152. Menke, 111 111. App. 212. 486 CIVIL DAMAGE ACTS. [§ 430 has been held to be the proximate cause of his death where it is shown that by reason of such intoxication, he lost his reason and judgment and all care of himself, and, while drunk and un- conscious, contracted a severe cold, although the direct cause of his death was pneumonia. 48 And where a person, while in- toxicated was unable to manage the horses he was driving in con- sequence of which the vehicle was overturned injuring him and his wife, the sale to him of the liquors producing the intoxica- tion was held to be the proximate cause of the injury. 49 Again, the sale of intoxicants to a son may in an action by his father for injury to his means of support be found as the proximate cause of the son's death by being struck by a train while on the track in a drunken condition. 50 And in Nebraska it has been decided that licensed sellers are liable in damages for all the proximate and legitimate consequences of their traffic and that if they have induced habitual drunkenness in a previously sober and indus- trious man they are liable for a consequent thriftless and dis- sipated career followed by him after they have ceased to furnish him with liquors. 51 But where a woman followed her husband, who was intoxicated, and while so doing she fell and was injured, her injury was held not to be the natural and proximate result of his intoxication. 52 And where while a person was intoxicated an altercation arose between him and the bartender who threw a glass at him which missed him and struck a third person, it 48. Nelson v. State ex rel. Hunter, he would not have received such in- 32 Ind. App. 88, 69 N. E. 298. jury had he not been intoxicated 40. Mulcahey v. Givens, 115 Ind. that in an action by the widow 286, 17 N. E. 598. for injury to her means of support Compare Krach v. Heilman, 53 Ind. she was not injured " in consequence 517, holding where a person was of the intoxication." so intoxicated that he was unable to 50. McNary v. Blackburn, 180 take care of himself and in conse- Mass. 141, 61 N. E. 885. quence thereof was lying in his wagon 51. Stahnka v. Kreitle, 66 Neb. on the way home and while so doing 829, 92 N. W. 1042. received an injury from a barrel in 52. Johnson v. Drummond, 16 111. the wagon from which he died and App. 641. § 431] CIVIL DAMAGE ACTS. 487 was held that the injury to the latter was not the natural and proximate cause of the sale of liquor. 53 § 431. Proximate cause — where intoxicated person commits a crime and is imprisoned. Similar to the question considered in the last section is that where an intoxicated person commits a crime and is imprisoned therefor whereby his wife or children or both are deprived of their means of support. In this connection it has been decided that where one is sent to the penitentiary for the commission of a crime committed in consequence of his being intoxicated the wife of such person may maintain an action against the saloon keeper for loss of means of support. 54 And in a case in Illinois it is held that where a father commits a crime as a result of the sale of intoxicating liquors to him, the seller is responsible to a child for loss of support whether such loss resulted from the convic- tion of the father and his incarceration in the penitentiary or by his flight from the country to avoid that punishment. 55 But in Michigan it has been declared that where a person commit- a crime while intoxicated and is imprisoned therefor, it is his ar- rest, conviction and imprisonment which deprives a wife of her means of support. 56 And in Pennsylvania it is declared that the imprisonment of the husband is not the proximate consequence of the act of the seller but is the act of the law, the direct result of the intervention of an independent agency. 57 •"•'5. Lucken v. People, 3 111. App. v. Walhizer, 43 Hun (X. V.) 254. The 375. Pennsylvania Btatute provided that •"■«• Homire v. Ealfman, 156 Ind. "any person furnishing intoxicating 470, 60 N. E. 154; Beers v. Walhizer, liquors to any other person in viola- 43 Bun (X. Y.) 254. tion of existing laws, or of the pro- 55. Loftus v. Hamilton, 105 111. visions of this act shall be held civilly App. 72. responsible for any injury to person 5G. Dennison v. Van Wormer, 107 <>r property in consequence of such Mich. 461, 65 X. W. 274. furnishing." It contained no pro- •">7. Bradford v. Boley, L67 Pa. St. vision as to loss of means of support. 506, 31 Atl. 751, distinguishing Beers 4SS CIVIL DAMAGE ACTS. [§ 432 § 432. Proximate cause — intoxicated person injured or killed as result of altercation. In a few cases the question has arisen whether there can be a recovery by the' wife or children of one who while intoxicated became engaged in an altercation and was injured or killed. The decisions upon this point are not in harmony. In some it is declared that in such a case the intoxication is not the proximate cause of the injury but that such injury is the result of the wilful conduct of such person which constitutes a new and independent cause and which relieves a defendant from liability. So in a case in Illinois it is decided that where a man became intoxicated and as a result thereof used abusive language to an- other who assaulted and killed him, the seller was not liable to the wife in damages therefor. 58 And in a later case in the same state where a person while intoxicated made a wilful assault upon an- other who killed him it was held in an action by the widow for injury to her means of support that the death of such person was the result of his own wilful and unlawful conduct and was not the natural result of the traffic for which the seller was respon- sible. 59 In another case, however, in Illinois, it was declared that, in the application of the doctrine that the intoxication must be the proximate cause of the injury, where one gets into difficulty and is shot, such injury is one for which there may be a recovery by a wife for injury to her means of support, but that if by his carelessness he does not obey the instructions given him by his physician as a result of which inflammation ensues rendering nec- essary an amputation of the limb injured, which results in his death, the seller is not responsible to the wife therefor. 60 And in a case in Maine where there was evidence tending to show the sale of intoxicating liquors to plaintiff's son upon whom she was in fact dependent for support, that the liquor caused him to make an 58. Shugart v. Egan, 83 111. 56, 25 App. 580. Am. Rep. 350. 60. Schmidt v. Mitchell, 84 111. 195, 59. Sauter v. Anderson, 11 2 Til. 25 Am. Rep. 446. § j;>oj CIVIL DAMAGE ACT 3. is!) assault upon a person who in self-defense struck him and broke his jaw, resulting in Lis decreased ability to labor and consequenl in- jury to plaintiff's means of support, it was held thai if thes were found in the affirmative and the jury also found thai the de- fendant ought to have apprehended the resulting injury to the the injury to the plaintiff's means of support would then be by reason of the intoxication of the son and the defendanl would be liable therefor.* 1 And in a recent case in Washington it was decided thai where a person while intoxicated made a deadly and unprovoked assault upon another who in self-defense killed him, a minor child might recover from the saloon keeper damages for the injury to her caused by her father's death. 62 In this connect inn it may be well to consider the fact that the proximate cause is not necessarily ascertained by reference to point of time. A cause may be a proximate one where it is connected with the result by a continuous chain of events and is the efficient and primary cause. It is a matter of common knowledge that intoxicating liquor frequently causes people to become abusive and quarrel- some and that words are used by them and acts done which under sober conditions they would neither use nor do, and of which they subsequently have no remembrance. If such a state of intoxica- tion causes a man to lose control of his mental faculties why cannot the intoxication be considered the proximate cause as well as where it causes a loss of physical powers and consequent in- jury. And certainly if the seller has knowledge that intoxication 61. Currier v. McKee, 99 Me. 364, mankind. The defendanl need not 59 Atl. 442. The court said: "The have intended thai plaintiff's son question of proximate cause is for should make an assault upon Boulier the jury under appropriate instruc- or even have expected it or the injury liens of law. One i not bound to which followed. Enough if accord- anticipate what is merely possible, ing to human experience it was I nor on the other hand is he liable apprehended that such results were for such consequences only as usually likely to happen from the intoxica- follovv. It is sufficient if the resuh time" Per Powers, J. ought to have been apprehended ac- 82. Woodring v. Jacobino, (Wash, cording to the usual experience of 1909), 103 Pac. 809. 490 CIVIL DAMAGE ACTS. [§§ 433,434 of a particular person causes such person to become abusive and quarrelsome should he not be held liable for such consequences as result from that condition and which are the direct and, we may properly say, the probable results thereof. § 433. Proximate cause — question for jury. The question whether the intoxication was the proximate cause of the injury complained of is one for the jury to determine under proper instructions by the court. 60 So where a person while intoxicated contracted pneumonia it was held under the facts to be a question for the jury whether pneumonia was the result of exposure and the consequence by continuous causation of the furnishing of the liquor. 64 And where in an action by a mother to recover for loss of support as a result of her son's death alleged to have been caused by the unlawful sale of liquor to him, the plaintiff alleged that the death of her son was due to his being so intoxicated that he allowed the horse he was driving to bring the buggy into collision with a telegraph pole near the road and the defendant claimed that the negligence of the telephone company was the cause of death, it was held that the question of proximate cause was one for the jury. 65 § 434. Sale must have contributed to or caused intoxication — proximate cause — must be sale to individual causing injury. The evidence must establish a sale causing or contributing to the intoxication causing the injury complained of. 66 So where liquors were sold to a person who afterwards gave them to an- 03. Smith v. People, 141 111. 447, 31 633, 91 N. W. 941. M. E. 425; Currier v. McKee, 99 Me. 66. Schlosser v. State, 55 Ind. 82. 364, 59 Atl. 442; McMahon v. Du- Fox v. Wunderlich, 64 Iowa 187, 20 mas, 99 Mich. 467, 56 X. W. 13. N. W. 7, following Welch v. Jugen- 64. Davies v. McKnight, 146 Pa. heimer, 56 Iowa 11, 8 N. W. 673, 41 St. 010, 23 Atl. 320. Am. Rep. 77; Johnson v. Johnson, 65. Jarozewski v. Allen, 117 Iowa 145 Mich. 586, 108 N. W. 1011. § 434] CIVIL DAMACK ACTS. 49] other who became intoxicated and caused the injury complained of the seller is not liable, if it appears that he had no knowledge or reason to believe that they were to be furnished to such person. 07 So in New York, it is decided thai in an action for personal injuries sustained as a result of the intoxication of an- other it is essential in order to recover that it be shown that the liquor furnished by the defendant was the proximate cause of the intoxication and also that the liquor was furnished to or for the individual whose intoxication caused the injury. 88 So where the plaintiff was injured as the result of a collision with a vehicle in charge of an intoxicated person and it was shown that the liquor causing the intoxication was not furnished to him by the defendant but was sold to another person by whom it was given to the one causing the injury, it was decided that the defendant was not responsible. 69 67. Sullivan v. Conrad, 79 Neb. 303, 112 N. W. 660. 68. Dudley v. Parker, 132 N. Y. 386, 30 N. E. 737, aff'g 55 Hun 29, 8 N. Y. Supp. 600; Examine Carter v. Bernstein Bros., 104 Iowa 572, 73 N. W. 1076. 69. Dudley v. Parker, 132 N. Y. 386, 30 N. E. 737, aff'g 55 Hun 29, 8 N. Y. Supp. 600. The court said. per Bradley, J. "The purpose of this statute was to place the responsibility for the injurious consequences to others than the intoxicated person, upon those who should furnish the liquor which produced the intoxica- tion of the person by whom, which in and by reason of that condition or in consequence of it. the injury lie caused or suffered. This obligation is one of the incidents imposed by statute upon the liquor traffic The question when it arises is not one of care or diligence on the part of the seller, bui i-= simply one of can-,, and effect. And as has been said by this court, while the statute should not l>y judicial construction be enlarged, it should be interpreted ' according to its true intent and meaning, having in view the evil to be remedied and the object to be obtained.' Meade v. Stratton, 87 N. Y. 493. And that 'the legislature having control of subject of the traffic in the use of in- toxicating liquors, may make such regulations to permit the public evils and private injuries resulting from intoxication as in its judgment are calculated to accomplish this end.' Bertholf v. O'Reilly. 74 X. Y. 509, 524, 30 Am. Be].. :',-2:',. The statute is one of indemnity for consequences that may result from the traffic in liquors, consequences attributable to intoxication. Bui to charge a party, within tli<> meaning of the statute, the furnishing the liquor by him must be in whole or in part the proximate cause of the intoxication to which the injury complained of may he imputa- ble. And for that purpose the liquor 492 CIVIL DAMAGE ACTS. [§ 435 § 435. Sale by defendant need not be sole cause. The liquor sold by a defendant need not be the sole cause of an alleged injury to permit an aggrieved party to recover. 70 Though a seller may not have been the only one to sell liquor causing the injuries complained of, he may be liable where he has partially contributed thereto. 71 It is sufficient if it appears that the liquor sold was either solely or with liquor sold by other parties at or about the same time the direct cause of the intoxica- tion. 72 Therefore it is no defense to an action against a seller to recover for an injury resulting from intoxication to show that the intoxication was contributed to by others. 73 So a defendant may be liable though he sold only a part of the liquor causing intoxication and death of the husband and loss of support of the wife. 74 And the consequence need not have been within the must be furnished by such party to or for the person whose intoxication is the foundation of the charge of liability for the injury." 70. Acken v. Tinglehoff (Neb. 1000), 110 X. W. 456, citing Wiese v. Gerndorf, 75 Neb. 826, 106 N. W. 1025; Gorey v. Kelly, 64 Neb. 605, 00 X. W. 554; Wardell v. McConnell, 23 Xeb. 152, 36 X. W. 278; Chmelir v. Sawyer, 42 Xeb. 362, 60 N. W. 547. See also McClellan v. Hein, 56 Neb. 600, 77 X. W. 120; Cornelius v. Hult- man, 44 Xeb. 441, 62 N. W. 891; McClay v. Worrall, 18 Neb. 44, 24 X. W. 429. 71. Elsline v. Schuyler, 15 Neb. 51,1. 20 X. W. 20: Rolling v. Bennett, 18 Ohio C. C. 425. 72. Werner v. Edmiston, 24 Kan. ! 17. ?'■'- Illinois. — Emory v. Addis, 71 111. 27.",: O'Halloran v. Kingston, 16 111. App. 659. Indiana. — Smiser v. State ox rel. Kin-. 17 Irul. App. 510, 47 X. E. 220. I mm.— Kearney v. Fitzgerald, 43 580. Michigan. — Steele v. Thompson, 42 Mich. 594, 4 N. W. 530. Nebraska. — Gorey v. Kelly, 64 Neb. 605, 90 N. W. 554. Where the statute gives a cause of action where the injury is caused by intoxication produced by liquors sold in whole or in part by another it is no defense to an action against a person under such a statute to show that other persons sold liquor to the same person. Hackett v. Smelsley, 77 111. 109; Lloyd v. Kelly, 48 111. App. 554 : Gorey v. Kelly, 64 Neb. 605, 90 N. W. 554. A seller -who merely con- tributes to the husband's habits of drinking is not liable to the wife for damages which may accrue from eventual drunkenness not dircetly caused thereby but is liable for the injury resulting from specific acts of intoxication to which he has con- tributed. Cox v. Newkirk, 73 Iowa 42, 34 N. W. 492. 74. Nelson v . State ex rel. Hunter, 32 Ind. App. 88, 60 X. E. 298; Wool- heather v. Risley, 38 Iowa 486. § 435] ( IVIL DAMAGE A< TS I!,;; contemplation of the person who Bold the liquor to render him responsible. Ji is sufficienl if the liquor Bold produced in whole or in part the intoxication and thai such intoxication was the direct and proximate cause "i' the death. 76 Where the statute gives a righl of action if the intoxication shall be caused in whole or in part by the defendanl and the complainl alleges it caused in whole, evidence is admissible and sufficient showing was caused in part. 7 ' 1 Bui under a statute given a right of action against one who caused or contributed to the injury the plaintiff should satisfy the jury thai a defendant contributed to the injury in some appreciable or substantial degree. 77 And it has been decided that while a seller who has contributed in whole or in part to the intoxication causing the injury complained may be liable for damages therefor, yet he must have contributed to the intoxication, and that it is not enough to render him liable that he contributed merely to the formation of habits of intoxica- tion. 78 And where the ground for recovery charged is the sale of liquor which has caused habitual drunkenness, the proof should be such that the jury can say that the person charged has sold a sufficient number of times to materially aid in bringing about *S. Davis v. Standish, 2G Hun intoxication is the cause and only (N. Y. ) (108. cause of action provided f< >r and 70. Rnth v. Eppy, 80 111. 283. makes the guilty party liable what- " All damages " as used in the ever lie flic means resorted to whether condition of a bond is held to in- they be on the pari of the seller or elude lose of means of support of a owner. McGee v. McCann, 69 Me. 79. wife and children of the husband who It has been held under the statute by drinking liquors sold ot given to in Michigan making any one "caus- him in whole or in part by the vendor, ing or contributing to " the intoxica- principal in the bond, or Ids agents or tion liable thai i- i- noi accessary to employees, becomes intoxicated and as allege in an action by a wife thai the a result disabled or disqualified in sales were made to her husband* while whole <>r in part, either mentally or he was intoxicated or had become an physically from liquor. Gran v. habitual drunkard. Wood v. Lentz, Houston, !.-> Neb. 813, 64 X. W. 245. llii Mich. -2::,. 74 X. \Y. 462. 77. Chase v. Kenniston, 7»; Me. 78. Bryant v. Tidgewell, 133 Mass. 209. 86; Examine Steele v. Thompson, 42 In Maine it lias been derided that Mich. 594, 4 X. \V. 536. the causing or contributing t.> the 494 CIVIL DAMAGE ACTS. [§ 43G the state of habitual drunkenness, but positive proof of numer- ous sales is not indispensable to that conclusion. 79 Whether a defendant caused or contributed to the intoxication causing the injury is a question of fact for the jury. 80 And the question of the extent to which a seller contributed to a person's intoxication is one for the jury. 81 § 436. Sales by agent of defendant. Sales by an agent of a defendant are in effect sales by him and will render him liable. 82 And under allegations that the liquors were sold by the defendant the plaintiff may show that they were sold by defendant's employees. 83 And the fact that a saloon keeper prior to the sales complained of in a civil damage case had instructed his servants not to sell liquor to the deceased, is inadmissible in evidence as tending to prove that such sales were not in fact made, 84 as a previous direction to an agent of the defendant not to sell to the person in connection with whom the cause of action arises is no defense. 85 70. Siegle v. Rush, 173 111. 559, 50 N. E. 1008. 80. Chase v. Keimiston, 76 Me. 209. 81. Maloney v. Dailey, 67 111. App. 427. 82. Illinois. — Kennedy Bros. v. Sul- livan, 136 111. 94, 26 N. E. 382; Meyers v. State, 121 111. 443, 13 N. E. 216; Brandt v. McEntee, 53 111. App. 457. Indiana. — State ex rel. Brough v. Terheide, 166 Ind. 689, 78 N. E. 195; Barnaby v. Wood, 50 Ind. 405; Reath v. Slate ex rel. Johnson, 16 [nd. App. 146, 44 N. E. 808. Iowa. Worley v. Spurgeon, 38 Iowa 405. Massachusetts. — Genge v. Gobey, 128 Mass. 289, 35 Am. Rep. 370. Michigan. — Gullikson v. Gjorud, 82 Mich. 503, 46 N. W. 723, citing Keh- rig v. Peters, 41 Mich. 475, 2 N. W. 801 ; Kreiter v. Nichols, 28 Mich. 496. Missouri. — Skinner v. Hughes, 13 Mo. 440. 'Nebraska. — Houston v. Gran, 38 Neb. 087, 57 N. W. 403. New York. — Smith v. Reynolds, 8 Hun 128. Texas. — Manning v. Morris, 28 Tex. Civ. App. 502, 07 S. W. 906. Wisconsin. — Peterson v. Knoble, 35 Wis. 81. 83. Carter v. Bernstein Bros., 104 Iowa 572, 73 N. W. 1076. 84. Gran v. Houston, 45 Neb. 813, 04 N. W. 245; following Houston v. Gran, 38 Neb. 687, 57 N. W. 403. 85. Young v. Beveridge, 81 Neb. 180, 115 N. W. 766. ■ 137,438,439] CIVIL DAMAGE ACTS. 495 § 437. Sales by agent of defendant — exemplary damages. Exemplary damages may be recovered for salee made by defendant's employees as well as for those made by himself, it being declared that he is Liable not only for his personal acts hut for his recklessness or wilfulness in neglecting to guard against sales that he knew would injure those entitled to In lug suit. 86 But though a defendant cannot evade his liability for actual damages by showing that the sale complained of was made by a servant in violation of his order, yet such fact may be considered in mitigation of exemplary damages. 87 So where the defendant had in good faith instructed his employee not to sell to a certain person, the wife of such person should not in an action for loss of support be allowed exemplary damages, it appearing that the employee made a sale in violation of such instructions. 88 § 438. Sale by agent — sale of business to him not bona fide. Where a person making the sale is a bona fide agent of the owner and a sale of the business to such agent was a mere pretense to relieve the owner's bondmen from responsibility, they will nevertheless be held liable. If on the other hand a sale is a bona fide one and the seller gives the buyer a power of attorney to act as his agent, and such authority is a mere pretense to en- able the buyer to carry on the business unlawfully under the seller's license, the latter's bondsmen are not liable for sales made by the buyer. 89 § 439. Joint liability of defendants. All those who contribute by making sales resulting in intoxica- tion causing injury to another are liable therefor. 1 '" And there may be a joint liability for the damages caused by a sale of 86. Kehrig v. Peters, 41 Mich. 47r>, s! »- Billiker v. Fair, 14!> Mich. 444, 2 N. W. 801. 112 X. W. 1116. 87. Fentz v. Meadows, 72 111. 540. 9©. Rooae v. Perkins, !' Neb. 304. 88. Branli^an v. While, 7:5 111. 561. 2 X. W. 71."., 31 Am. Rep. 409. 49G CIVIL DAMAGE ACTS. [§ 439 liquors though the sales by one of the parties may have begun at a date subsequent to sales made by another. 91 And generally it is decided that the person injured may, where several parties have contributed to the intoxication causing the alleged injury, join them as defendants. 92 And it is declared in such cases that each person who by bartering, selling, or giving intoxicating liquors, contributed in part to the intoxication causing the injury complained of is liable to the full extent of the injury. 93 So there may be a recovery from one defendant of all the damages though sales made by others may have contributed to produce the injury. 94 And where the statute provides that the sellers of in- toxicating liquors who shall in whole or in part have caused the intoxication of a person shall be liable to any person injured there- by and that such person may bring an action jointly or severally against such persons, where sales have been made to a habitual drunkard, it is decided that each person assisting in bringing about such condition will be held liable for the acts of all who contrib- uted. 95 So where a wife claimed damages resulting from a par- ticular intoxication of her husband and not from a general besotted condition, it was held that a joint action would lie against the 91. Lane v. Tippy, 52 111. App. 532. 94. Buckworth v. Crawford, 24 111. 92. Illinois.— Stanley v. Leahy, 87 App. G03; Bowden v. Voorheis, 135 111. App. 465 (wife may) ; Keller v. Mich. 648, 98 N. W. 406. See also Lincoln, 67 111. App. 404; O'Leary v. Boyd v. Watt, 27 Ohio St. 259; Tay- Frisbey, 17 111. App. 553. lor v. Wright, 126 Pa. St. 617, 17 Indiana. — Fountain v. Draper, 49 Atl. 677. But see Bellison v. Apland, Ind. 441. Compare Baker v. McCoy, 115 Iowa 599, 89 N. W. 22: 58 Ind. 215. In Huggins v. Kavanagh, 52 Iowa Massachusetts. — Bryant v. Tidge- 368, 3 N. W. 409, it was held errone- well, 133 Mass. 86. ous to change the jury that if they Nebraska. — Jones v. Bates, 26 Neb. were unable to separate the damages 693, 42 N. W. 751, 4 L. R. A. 495. to which the defendant contributed Ohio. — Eantz v. Barnes, 40 Ohio St. from those to which he did not he 43 ; Rengler v. Lilly, 26 Ohio St. 48. would be liable for the whole amount But sec Morenus v. Crawford, 15 of injury. Hun C\. Y. ) 45. 95. Earp v. Lilly, 217 111. 582, 75 93. Fountain v. Draper, 49 Ind. N. E. 552. 441. § 440] CIVIL DAMAGE ACTS. |!t7 several persons who contributed to that intoxication, though they were conducting seperate places of business when the liquor was sold the husband, and did not act in concert. 90 But where the injury nsults from the general besotted condition of a person and not from a particular act of intoxication it has been decided that those who have contributed to the former condition by the sale of the Liquors are not jointly Liable with those wha have contributed to the immediate intoxixcation. 1 ' 7 And in Iowa it has been decided regarded as joint wrongdoers, but each is severally liable for the that those who contribute to the intoxication of a person are not wrong done by his own acts. 08 And in Indiana it lias been decided that where persons hold separate licenses and have exxecuted separate bonds, a joint action cannot be maintained againsl them and their sureties upon such bonds." § 440. Joint liability of defendants — but one satisfaction. Where parties who have contributed to the intoxication are jointly liable, it is held that there can be but one satisfaction for the injury. 1 So where several persons contributed to the in- toxication causing the injury a release executed by a plaintiff to a part of them is held to bar a recovery against the others. 2 And where on separate trials of a joint action different judgments were rendered against the several defendants it was held that a satisfaction of one of such judgments would discharge the re- 06. Faivre v. Mamlercheid, 117 Gauer, 66 Iowa 696, 24 X. \Y. 513, Iowa 724. 90 X. YV. 7(i. citing Richmond v. Shickler, 57 Iowa 97. Bitchner v. Ehlers. 4 1 [owa 40, 486. 10 X. YY. 882; Ennia v. Shiley, citing La France v. Kravor, 42 Iowa 47 Iowa 552; Engleken v. Webber, 143. 47 Iowa 558. !>s. Richmond v. Shickler, 57 Iowa )>'>• Baker v. McCoy, 58 [nd. 215. 486, 10 X. YV. 882. '• Emory v. Addis, 71 111. 273; Whoever by the wrongful sale of Comstock v. Hopkins, 61 Hun (X. Y.) intoxicating liquors contributes to the 189, 15 X. Y. Supp. 908. formation of habits of intoxication is 2. Stanley v. Leahy, 87 111. App. liable only Cor the damages caused by 165; Aldrich v. Paraell, 147 Ma-.-, his own wrongful act. Flint v. 409, IS X. E. 170. 498 CIVIL DAMAGE ACTS. [§ 441 mainder but that the plaintiff might elect which one to enforce. 3 But a settlement with one liquor seller for intoxication induced during a certain period does not preclude a recovery from an- other seller for intoxication induced during the same period where the sales were separate and distinct, each producing in- toxication to which the other in no way contributed. 4 And where an action is brought against two sureties a dismissal as to one of the sureties or his representatives in law is not a release of the remaining surety. 5 And an action upon the bond of a saloon keeper is not barred by a judgment against the saloon keeper and the owner of the premises unless actual satisfaction has been re- ceived. 6 Again, even though parties are jointly liable a partial pay- ment by one of them of the amount of a judgment recovered would not discharge the others as a partial payment is not a satisfaction. 7 § 441. Owner or lessor — statute making him liable— construction of. In some states statutes have been passed creating a liability on the part of the owner of the premises for injuries caused by one who, becomes intoxicated thereon, where he either leases the prem- with knowledge that liquor is to be sold there or has knowledge that it in fact so sold. 8 In a thorough and lengthy 3. Putney v. O'Brien, 53 Iowa 117, Judge v. Flournoy, 74 Iowa 1G4, 37 4 N. W. 891. N. W. 130; Mead v. Stratton, 87 N. 4. Jewell v. Welch. 117 Mich. 65, Y. 40.3. 41 Am. Rep. 386. 75 X. W. 283; Miller v. Patterson, Pleading.— Where by statute the .31 Ohio St. 419. owner of premises is also liable an 5. Carlton v. Krueper (Tex. Civ. allegation of ownership of such prem- App. 1909). 115 S. W. 619. ises against a defendant in an action 6. Wanach v. People Use of Alex- against him and the seller makes ander, 187 111. 110, 58 N. E. 242. them jointly liable. Helmuth v. Bell, 7. McVey v. Manatt, 80 Iowa 135?, 150 111. 203, 37 N. E. 230. 45 X. W. 548. Where, however, the action is 8. X; 1L rio v. Keller, 141 111. App. against the seller and no claim in 444; Barnaby v. Wood, 50 Ind. 405; any way is made against the owner § ill] CIVIL DAMAGE ACTS. opinion this question has been considered by the Courl of Appeals in New York and ii is there decided thai a statute enacting thai the lessor of premises, with knowledge thai they are to be used for the sale of intoxicating liquors shall be Liable for the damages caused by the one intoxicated by liquors sold then-, [a constitu- tional, and not a taking of property without duo process of law. 9 of the building a description of such property in the petition will be re- garded as surplusage and the plain- tiff is not limited to the proof of damages occasioned by sales made in the building so described. Gustafson v. Wind, (i-J Iowa 281, 17 N. W. 523. 9. Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323, aff'g 8 Hun 1G. The following extract from the opinion is valuable in this connec- tion. " The question we are now to determine is whether the Legislature has the power to create a cause of action for damages in favor of a per- son injured in person or property by the act of an intoxicated person against the owner of real property, whose only connection with the in- jury is that he leased the premises where the liquor causing the intoxi- cation was sold or given away with knowledge that intoxicating liquors were to be sold thereon. To realize the full force of this inquiry it is to be observed that the leasing of prem- ises to be used as a place for the sale of liquors is a lawful act not pro- hibited by this or any other statute. The liability of the landlord is not made to depend upon the nature of the act of the tenant, but exists ir- re peel ive of I he fad whet her t be sale or giving away of the liquor was law- ful or unlawful. That is whether it was authorized by the License Law of the Male, or was made in \i tion of thai law. Nor does the lia- bility depend upon any question of negligence of the landlord in the se- lection of the tenant, or of the tenant in selling the liquor. Although the person to whom liquor is sold is at the time apparently a man of sober habits and, so far as the vendor knows, one whose appetite for strong drink is habitually controlled by his reason and judgment, yel if it turns out that the liquor sold causes or con- tributes to the intoxication of the person to whom the sale or gift is made, under the influence of which he commits an injury to person or prop erty, the seller and his landlord are by the act made jointly and severally responsible. The clement of care or diligence on the part of the seller or landlord does not enter into the ques- tion of liability. The statute im- posed upon the dealer and the land- lord, the risk of an injury which may be caused by the traffic. It can- not be denied that the liability soughl to be imposed by the aci is of a very sweeping character and may. in many -, entail severe pecuniary liabil- ity, and its language may include i not within the real purpose of the enactment. The owner of a build- ing who leti ii to be occupied for the sale of general merchai hid- ing wines and liquors, may, under the act, be made liable for (lie acts of an intoxicate where his only fa ub he leased the pren for a . including the sale of intoxicating liquors in the same way as oilier merchandise. liability is not restricted to the re- sults of intoxication from liquors >00 CIVIL DAMAGE ACTS. [§ 44:- But in New York it is also held that to render the liable under the statute it must be shown that he had knowledge at the time of the execution of the lease that the premises were to be used for the sold or given away to be drank on the premises of the seller. There is no way by which the owner of real prop- erty can escape possible liability for the results of intoxication where he leases or permits the occupation of his premises, with the knowledge that the business of the sale of liquors is to be carried on on the premises, whether alone or in connection with other merchandise, or whether they are to be sold to be drank on the premises or to be carried away and used elsewhere. His only absolute protection against the liability im- posed by the act is to be found in not using or permitting the premises to be used for the sale of intoxicating liquors. The question whether the act under consideration is a valid exer- cise of legislative power is to be de- termined solely by reference to con- stitutional restraints and prohibi- tions. The legislative power has no other limitation. If an act can stand when brought to the test of the Con- stitution the question of its validity is at an end, and neither the execu- tive nor judicial department of the government can refuse to recognize or enforce it * * * The broad question is presented, whether the act tran- scends the limits of the legislative power, in subjecting a landlord to liability, under the circumstances mentioned in the act. Does the act, in effect, deprive him of his property without 'due process of law' in the e of the Constitution? If the act can be sustained as to the landlord, it is clearly valid as to all other per- : and ils validity as to the land- lord is the question directly presented in this case. * * * It is quite evident that the act of 1873 may seriously interfere with the profitable use of real property by the owner. This is especially true with respect to a build- ing erected to be occupied as an inn or hotel, and especially adapted to that use, where the rental value may largely depend upon the right of the tenant to sell intoxicating liquors. The owner of such a building may well hesitate to lease his property, when by so doing he subjects himself to the owner's liability imposed by the act. The act, in this way, indi- rectly operates to restrain the abso- lute freedom of the owner in the use of his property, and may justly be said to impair its value. But this is not a taking of his property, within the meaning of the Constitution. He is not deprived either of the title or the possession. The use of his prop- erty for any other lawful purpose is unrestricted, and he may let or use it as a place for the sale of liquors subject to the liability which the act imposes. The objection we are now considering would apply with greater force to a statute prohibiting, under any circumstances, the traffic in in- toxicating liquors, and as such a statute must be conceded to be within the legislative power, and would not interfere with any vested rights of the owner of real property, although absolutely preventing the particular use a fortiori, the act in question does not operate as an unlawful re- straint upon the use of property. That a statute impairs the value of property does not make it unconsti- tutional. All property is held sub- ? I i 1 j C1YJL DAMAGE \< TS. 501 purpose of carrying on the liquor traffic. 10 In Iowa it has been decided that in order to render the owners of the property liable it is only necessary to allege and prove knowledge by them of the unlawful sales and thai allegation and proof of consent is not necessary, 13 and that knowledge on the part of an owner may be shown by proving the general reputation of the place. 12 Under such a statute a wife who owns a building and permits her husband to occupy the same or a part thereof with knowledge that he is engaged in selling intoxicating liquors is liable, it not being ject to the power of the State to reg- ulate or control its use, to secure the general safety and the public welfare. * * * The liability imposed upon the landlord for the acts of the tenant is not a new principle in legislation. This liability only arises when he has consented that the premises may be used as a place for the sale of liquors. He selects the tenants, and he may without violating any constitutional provision, be made responsible for the tenant's acts connected with the use of the leased property. In Dobbins v. United States, lie, U. S. 395, a dis- tillery, with the real and personal property used in connection there- with, had been seized and condemned to be forfeited, for the violation by a lessee of certain provisions of the act of Congress regulating the business of distilling. No fraud was imputed to the owner of the premises, and he was not charged with any compli with the tenant in violating the law. The owner objected that his property could not be forfeited for (lie acts of the tenant, committed withoul his knowledge or consent. Bui the court affirmed the decree of condemnation, and in his opinion Clifford, J., say-: • The legal conclusion musl lie i hat the unlawful acts of the distiller hind the owner of the property in respect to the management of the same, as much as if they were committed by the owner himself. Power to that ef- fect the law vests in him by virtue of his lease; and if he abuses his trust it is a matter to be settled be- tween him and his lessor; but the acts of violation as to the penal con- sequence to the property are to be considered just the same as if they were the acts of the owner.' Our conclusion is that the act of 1*7 :i is a constitutional enactment, it is doubtless an extreme exercise legislative power, but we cannot say that it violate- an y express or im- plied prohibition of the Constitu- tion." Per Andrews, J. io. O'Rourke v. Piatt, 67 Hun | \\ Y.) 71, 21 X. V. Supp. 1118. The question of knowledge is one of fact for the jury. — Mead v. St rat ton, 87 X. V. 493, 41 Am. Rep. 386. ll« Judge v. Flournoy, 74 [owa 164, ::7 X. \V. 130, followed in Ji \. I ('Conner, 7 1 [owa 166, :i7 X. W. 1.31. Compare Myers v. Kirt. (it Iowa 27. 1!) X. W. 846, holding knowledge and consent both necessary. Meyers v. Kirt. :,7 [owa 121. in X. W. 828. i-. Judge v. O'Connor, 74 Iowa 166, 37 X. W. 131. 502 CIVIL DAMAGE ACTS. [§ 442 essential to the liability that the strict relation of the landlord and tenant shall exist. 13 § 442. Owner bound by knowledge of agent. Under a statutory provision creating a liability on the part of the landlord " having knowledge that intoxicating liquors are to be sold " upon the premises, the doctrine will be applied that knowledge of the agent will be imputed to his principal and where it appears that an agent with power to lease the premises had such knowledge, the owner cannot escape liability on the ground that he had no actual knowledge. 14 13. Mead v. Stratton, 87 N. Y. 493, 41 Am. Rep. 38(5. 14. Hall v. Germain, 131 N. Y. 536, 30 N. E. 591. The court said, per Andrews, J. " We concur in the opin- ion of Judge Dwight at the General Term, that knowledge by the agent, Edward B. Germain, at the time he leased the premises for a saloon, that intoxicating liquors were to be sold therein, and their subsequent use for that purpose is imputable to his prin- cipal. The words of the statute, ' and having knowledge that intoxi- cating liquors are to be sold therein,' were inserted to prevent an interpre- tation which would subject the land- lord to liability when intoxicating liquors should in fact be sold on the leased premises, although they were not let for that purpose, and the landlord did not know or understand at the time. The lease was made that liquor was to be sold therein. The lia- bility of a lessor under the act is to be determined by his knowledge at the time the lease was given. If he does not then know that the premises are to be used for the sale of liquor and does not intentionally shut his eyes, he is not liable under the act, al- though the tenant does subsequently during the term use the premises for the sale of liquor. It would be most unreasonable to charge the landlord with liability, who let his premises, not knowing that they were to be used for the sale of liquor, on the mere ground that the premises were in fact so used by the tenant. The landlord could not terminate the lease because liquor was sold therein, un- less it was so provided in the lease, or unless the sale by the tenant was unlawful, that is to say, without his being licensed to sell. If the sale by the tenant was unlawful, that ipso facto under the statute works a for- feiture of the lease, and if the land- lord, after knowledge that the for- feiture has been incurred, failed to en- force the forfeiture and enter upon the premises, a different question would be presented. The landlord is not bound to insert a covenant on the part of the tenant in the lej.se, not to sell liquor on the premises, in or- der to escape liability. He can only be made liable when it is shown that he knew when the lease was executed that the premises were to be used for the sale of liquor. It would not, we apprehend, be sufficient to establish his liability under the act that he let CIVIL DAMAGE A( TS. 503 § 443] § 443. Owner or lessor — exemplary damages. The owner of a building may be liable for exemplary damages under the statute as well as the seller. 15 So knowledge on the part of the landlord that promises leased by him are to 1"- used for the sale of intoxicating liquor is held in Illinois to render him also liable for exemplary damages. 16 The right, however, to recover exemplary damages against a landlord does nol depend entirely on the act of the tenant, but knowledge on the part of the former of the circumstances under which the liquor was sold to a person must he shown. 17 So in the application of the doctrine that to justify an award of exemplary damages there must be circumstances of abuse or aggravation, it has been decided in the premises for a store, except the jury should find that he knew or had reason to know that the sale of liq- uor would be a part of the business, to be carried on. This being the con- struction of the statute, it is appar- ent that the words ' having knowl- edge,' etc., were not inserted to change in these cases the rule that the knowledge of the agent of any facts which are part of the res gestae of his agency, is imputed the prin- cipal. The civil obligations and lia- bilities of the landlord in these as in other cases of agency are to be reg- ulated upon this principle. The land- lord's knowledge may. like any other fact, be established by direct or cir- cumstantial evidence, but, however, established, it must relate to the time of the lease. Where the lease is at will or sufferance, <>r the occupation of the premises is by mere permission of the owner, without any lease, it would be the duty of the owner to in- terpose on the fact coming to his knowledge thai liquor was bein on the premises, if he would protect himself thereafter from liability. In the present case the agent let the premises knowing that they were to be used for the sale of liquor. They were occupied for years as a Baloon, and rents were received, and as the evidence tends to show, accounted for to the principal, although the latter had no actual knowledge of the pur- pose for which the premises were rented or used. But under the gen- eral principle, knowledge of the agenl was knowledge of the principal. The statute sin mid have a just and fair construction. It would afford a wide opportunity for evasion if a landlord could leave the management of his property to his agenl and take the benefit of his leases for the busi- n< 39 of liquor selling, and escape liability on the ground thai he had no actual knowledge that the prem- ere lei for such a purpose, al- though the agenl at the time if the letting had such knowledge. 15. Backetl v. Smelsley, 77 111. 109. «<;. Na jie v. Keller, 1-11 111. App. 444. it. Ketcham v. Fox. 52 Hun (N. V.) 284, 5 N. Y. Supp. 272. 504 CIVIL DAMAGE ACTS. [§ 443 New York under a statute creating a liability on the part of the landlord that wherein an action by a widow against the seller and landlord to recover for the death of her husband, there is evidence that the plaintiff requested the seller not to sell liquor to her husband but there was no evidence that the landlord had any knowledge of such request, it is error to charge the jury that they might award exemplary damages against both. 18 18. Reid v. Terwilliger, 116 N. Y. 530, 22 N. E. 1091. The court said, per Potter, J. " The substance of the statute is, that whenever the person, property or means of support of cer- tain classes of persons shall be in- jured by any intoxicated person or, in consequence of the intoxication of any person, such classes of persons shall have a right of action, and that the person who shall have sold or given the liquors causing the intoxi- cation in any degree, and any person owning, renting or permitting the occupancy of the premises having knowledge that liquors were to be sold therein, shall be liable severally and jointly for all damages sustained and for exemplary damages. The Legis- lature, have, in this statute, defined the elements of a new cause of action and who may be liable for it. The 1 gislature, however, made no change in the rules of ascertaining and de- termining the damages, or the limits of liability in the newly-created causes of action, but left them sub- ject to the existing rules of damages, and to the facts established upon the trial. The damages recoverable in actions of torts or wrongs have long since been classified into compensa- tory and punitive or exemplary. Com- pensatory damages were not recover- able, except upon proof of certain facts, and punitive damages were not recoverable without proof of facts ad- ditional to the facts required to re- cover compensatory damages. The distinction between the two kinds was quite as well defined and are as es- sential as the distinction between dif- ferent causes of action. Compensa- tory damages, as indicated by the word employed to characterize them, simply make good or replace the loss caused by the wrong. Exemplary damages, as also indicated by the word employed to characterize them, besides making good the loss, serve to punish and make an example of the wrongdoer. Voltz v. Blackmar, 64 N. Y. 440-444, Fisher v. Met. El. R. Co., 34 Hun 433; Rawlin v. Vid- vard, Id. 205, and the authorities cited by the justice in delivering the opinion of the General Term at page 208. Compensatory damages proceed from a sense of natural justice, and are designated to repair that of which one has been deprived by the wrong of another. To this species of dam- age the Legislature or the courts have from time to time in certain classes of wrongs, added another kind of damage when their commission was prompted or characterized by motives of malice, cruelty, oppression, wantonness or recklessness. It may be reasonably presumed that the Leg- islature, knowing that it was giving a cause of action for an additional wrong, and wishing to stamp this wrong with the same character as other wrongs, declared from the out- set, without waiting the doubtful or CIVIL DAMAGE ACTS. 505 § 444] § 444. Owner — extent of lien against. The judgment recorded against the seller is held in Iowa to be absolutely conclusive as to the amount to which the landlord's dilatory action of the courts, that exemplary damages might be recov- ered in this class of actions. It can- not be supposed the Legislature in- tended to go further than to place this wrong upon the same plane with other wrongs where exemplary dam- ages may be recoverable when the evidence upon the trial will justify such damages in accordance with well-established and recognized rules. A contrary conclusion would render one wdio rents a building or permits it to be occupied without rewind, knowing that liquors are to be sold therein, under a license from the public authorities, and with no other connection with the statutory wrong-doers, and without other per- sonal fault or misconduct, liable, at least, in part, to the punishment in- dicted for a violation of the criminal laws. I am not willing to give such construction to the statute in ques- tion. Neither its language nor its purpose require or would justify it. It is better when established legal principles are to be so far departed from, or so radically changed in pro- nouncing or affirming a judg at, that it should be done by the law- making rather than the law-interpret- ing power. All the adjudicated cases save one, and that one by a divided court, so far as I have been informed, have held in harmony with these views. Rawlins v. Vidvard, 34 Hun 205, before referred to in a very well considered opinion of the General Term, fourth department, holds thai where an action is brought against the owner of premises under the Civil Damage Aci by a wife to recover flam- ages for injuries, etc., through a sale of intoxicating liquors by the tenant to her husband, exemplary dam cannot be awarded by the jury with- out proof of aggravated circumstances with which the defendant is con- nected. Davis v. Standish, 20 Hun 008-015: Jackson v. Brookins, 5 Id. 530, 535; Ketcham v. Fox, 52 Id. 284; Franklin v. Sehermerhorn, 8 Hun 112, holds that, 'although the jury in this class of cases have the right to give exemplary damages, yet the}- should only be given where there are circum- stances of abuse and aggravation proved against the vender of the liq- uor. 'The question under consider- ation was before this court in one aspect in Neu v. MeKechnie, 95 N. Y. 032, 47 Am. Rep. 89. It was in re- lation to what was proper evidence to warrant a recovery of exemplary dam- ages in an action under this statute againsl the vendor. The case r« nize the established rule that in order to recover exemplary damages legiti- mate evidence must be given for that purpose. All the cases which have been derided require such proof to be given against the vendor, to authorize such recovery, notwithstanding the peculiar phraseology of the statute, and yet it may lie just as reasonably argued from that wording, that a re- covery of exemplary damages may be had against the vendor without any proof of the facts requiring it in .i! '., r cases. The statute a fter de- claring the wrong, specifies the per- who may have an action and persons liable therefor, viz.. the ven- dor and owner in the circumstances specified, severally or jointly for all dan lined and for exemplary damages. If this language, alike ap- ■ i CIVIL DAMAGE ACTS. [§ 445 property should be subjected. 19 And where it is sought to have a judgment against a liquor seller made a lien on the saloon property leased by him, the lessor cannot have the judgment divided, and a part of it only made a lien, on the ground that he did not know of the wrongful sales until some time after they had begun. 20 Where the action is a joint one against the seller and the owner of the building and a lien is asked against the building, the petition is held in that state to be one " affecting real estate" within the meaning of a statute charging third persons with notice of such a petition. 21 § 445. Notice not to sell. Notice to a saloon keeper not to sell liquor to a certain person need not be given where none is required by statute. 22 In some states, however, it is provided by statute that such a notice must be given to the seller, and where notice is so required it must be given to entitle one to a recovery, 23 and must be given by the plicable to both vendor and owner does not relieve the plaintiff from proving the requisite personal facts for exemplary damages against the vendor, why should it relieve plain- tiff from proving the necessary per- sonal facts to recover exemplary dam- ; g against the owner? I do not think the fact that the Legislature has enabled the injured party to bring a joint action against the vendor of the liquor and the owner of the prem- affects the decision of the ques- tion under consideration. But it is claimed in behalf of the respondent that even if the charge in relation to the right of the plaintiff to recover in this case exemplary damages against the owner of the premises was erroneous, yet the verdict in this case embraced no exemplary damages. Perhaps that may be so. The verdict was quite moderate in amount, but how is this court to be assured of the truth of the statement that the ver- dict contained no exemplary damages? This court cannot resolve itself into a jury, or an inquisition to investi- gate the evidence presented in the appeal book. This court has jurisdic- tion to pass upon questions of law, and in respect to the directions of the trial court to juries, to deter- mine whether the action was tried upon correct legal principles." 19. McVey v. Manatt, 80 Iowa 132. 45 N. W. 548, citing Buckham v. Grape, 65 Iowa 535, 17 N. W. 755, 22 N. W. . O'Connell v. O'Leary, 145 Mass. such liquor was not in fact for his 311. 14 N. E. 143. parents. Compare Commonwealth v. Finne- 60. Flower v. Witkovsky, li'.i Mich, gan, 124 Mass. 324. holding thai 371, 37 X. W. 364. though a minor may have authority 61. Weiser v. Welch, 112 Mich. 134, from his parents to purchase intoxi- To X'. \Y. eating liquor and at the time of a 62. Scahill v. Aetna Indemnity Co. purchase he states that he is so buy- (Midi. 1909), 122 X. \\ . 78. ing and the seller believing and rely- 63. Danley v. Eibbard, 222 111. 88, ittg thereon gives him the liquor de- 7S X. E. 30. 5U CIVIL DAMAGE ACTS. [§ 453 sales to an habitual drunkard, on the prosecution of an action for damages growing out of a sale to such a person the good faith of the seller, or his ignorance of the habits of the buyer is im- material. 64 And where in case of sales to an habitual drunkard in violation of statute it is shown that the seller had knowledge of such fact as to the purchaser there may be a recovery of exemplary damages. 65 And it is decided that knowledge on the part of a liquor dealer that a drunkard to whom he sells liquor has a wife is as much evidence of a wanton and wilful injury to her as if she had actually forbidden such sale. 66 In Michigan it has been decided that as a husband cannot continue an habitual drunkard unless liquor is furnished to him by some one, a liquor dealer who furnishes such liquor or any part thereof for gain, is, under the statute, holden to the wife for the money or prop- erty he receives from the husband in exchange for such liquor. 67 Under the excise law in some states the right of an habitual drunk- ard to recover for injuries resulting to or for loss of his property has been recognized. 68 64. Bistine v. Ney Bros., 134 Iowa 172, 111 N. W. 422. Not necessary to prove knowl- edge. — Where the evidence shows that the husband is and was during the period when the sales were com- plained of a habitual drunkard it is unnecessary to prove that the de- fondant had knowledge of that fact. Radley v. Seider, 99 Mich. 431, 58 N. W. 366. ■What constitutes a person an habitual drunkard.— In a case in Iowa the following instruction to the jury was held not erroneous : " If the jury shall find from the evidence in the case that during the time alleged in plaintiff's petition the husband of the plaintiff had formed the habit and indulged in it. of drinking to ex- cess and becoming intoxicated whether daily and continuously or periodically with sober intervals of a greater or less length, the person addicted to such habits is an intemperate man, an habitual drunkard." Miller v. Gleason, 18 Ohio C. C. 374. Want of consent by purchaser to purchase by reason of want of capac- ity, owing to being an habitual drunkard. Pleading of, see Bissell v. Starzinger, 112 Iowa 266, 83 N. W. 1065. 65. Earp v. Lilly, 217 111. 582, 75 N. E. 552. 66. Johnson v. Schultz, 74 Mich. 75, 41 N. W. 8G5. 67. Rouse v. Melsheimer, 82 Mich. 172, 46 N. W. 372. 68. Kilburn v. Coe, 48 How. Proe. (N. Y.) 144. CIVIL DAMAGE ACTS. 5 1 5 § 454] § 454. Sales to intoxicated persons. ruder ;i statute giving a righl of action to recover daj where liquor is sold to a person while intoxicated, allegation proof of knowledge of such intoxication on the part of the Belli r have been held unnecessary. 69 And exemplary damages are n erable for injuries resulting from sales made to a person when he is intoxicated and with knowledge that he has been in the habil of becoming so. 7 " And where the sale of liquor is unlawful as where it is sold to an intoxicated person in violation of law, a case arises in which the jury may assess exemplary damages. 71 So it is not error in an action by a wife for the court to read to the jury a statute prohibiting the sale of intoxicating liquor to an in- toxicated person or to an habitual drunkard as it is admissible 09. Greener v. Nielhans (Tnd. A. C. 1909), 89 N. E. 377; Berkeheimer v. State (Ind. A. C. 1909), 88 N. E. 634. As to who is an intoxicated person within the meaning of a civil damage statute in reference to sales to such a person it was held proper to charge the jury as follows: " When it is apparent that a person is under the influence of liquor, or when his manner is unusual or abnormal, and his inebriated condition is reflected in his walk or conversation, when his ordinary judgment and common sense are disturbed, or his usual will power is temporarily suspended, when these or similar symptoms result from the use of liquors, and are manifest, then, within the meaning of the statute, the person is intoxicated and any one who makes a Bale of liquor to such person violates the law of the state. It is not necessary that the person should be so called ' dead drunk ' or hopelessly intoxicated; it is enough thai his senses are obviously de- stroyed or distracted by the use of intoxicating liquors." Lafler v. Fisher, L21 Mich. 60, 79 N. W. 934. Knowledge of intoxication presumed. — In a suit by a wife to recover damages alleged to have been sustained by reason of the sale of liquor to her husband when intoxi- cated, it is not necessary to allege that the saloon keeper knew that he was intoxicated, that fac tbeing pre- sumed from the very nature of the case. Fletcher v. Forler, 83 Mich. 52. 40 N. W. 1023, 10 L. R. A. 80. The right of a wife to recover against those who have caused or con- tributed to the intoxication is un- der some statutes regarded as an ab- solute one in no way predicated upon knowledge on the part of the seller that the husband was a person in the habit of becoming intoxicated. Me- diation v. Dumas, 96 Mich. 467, 56 X. W. 13. Sufficiency of pleading. — Sale to intoxicated person. Action by wife. See also Greener v. Nielhans (Ind. A. c. 1909), 89 X. E. 377. 70. Weitz v. Ewen, 50 Iowa 34. n. Betting v. Eobbett, 142 111. 72, 30 N. E. 1048. 516 CIVIL DAMAGE ACTS. [§ 454 as a ground for exemplary damages. 72 And under a statute in Michigan, where liquor was sold to a person while he was in- toxicated and his death was caused by such intoxication, such dam- ages were held to be recoverable. 73 And in a recent case in this state it is decided that where liquor was sold to a person known to be intoxicated, the jury may find that such sale was wanton, and may award exemplary damages, although the saloon keeper did not know the person had a wife and could not anticipate the particular injury suffered by reason of the sale complained of. 74 72. Johnson v. Sehultz, 74 Mich. 79 N. W. 934. 75, 41 N. W. 865. 74. Manzer v. Phillips, 139 Mich. 73. Laler v. Fisher, 121 Mich. 60 CIVIL DAMAGE ACTS. 517 CHAPTER XIX. CIVIL DAMAGE ACTS— Continued. Section 455. Who may bring action generally. 45G. Against whom action may be brought generally. 457. Complaint or declaration. 458. Evidence generally. 459. Evidence — proof by plaintiff — preponderance sufficient. 4G0. Evidence — facts established by circumstances. 4C1. Evidence generally showing sale. 462. Evidence — life tables. 463. Injury to the feelings — mental anguish — disgrace. 464. Medical attendance as element of damages. 465. Exemplary damages generally. 466. Exemplary damages — statutes as to. 467. Exemplary damages — ground for awarding — right to. 468. Exemplary da mages — no breach of peace. 469. Excessive damages. 470. Injury to person or property generally. 471. Statute as to allowance for taking care of person. 472. Means of support — where legal obligation. 473. Injury to means of support generally — action by wife. 474. Means of support — right of action generally — defenses. 47."). Means of support — income of wife or ability to labor immaterial. 176. Means of support — ad ion by wife — effect of divorce. 477. Means of support — action by wife — pleading. 178. Means of support — action by wife — evidence of earnings and financial condition. 47ii. Means of support — action by wife — evidence as to prior conduct. 480. Action by wife -evidence as to age and number of children. 4^1. Means of support — action by wife — measure of damages — e\ idence. 482. Action by wife — physical suffering — threats — abusive language. 483. Action by wife — assault by husband. 484. Action by wife — injury to property. 518 CIVIL DAMAGE ACTS. [§§ 455,456 Section 485. Action by wife — consent or acquiescence of. 486. Action by wife — consent or acquiescence of continued. 487. Action by widow — death of husband. 488. Action by widow — death of husband continued. 489. Action by widow — husband killed by intoxicated person. 490. Action by wife — exemplary damages. 491. Means of support of mother — sale to son. 492. Action by mother in behalf of her and children — joint action. 493. Means of support — action by children. 494. Action by husband. 495. Death of intoxicated person — no recovery by personal represent- atives. 49G. Action by intoxicated person. 497. Assault by intoxicated person. Sec. 455. Who may bring action generally. ISTo action can be maintained under these statutes except by the person named in the statute, 1 and the cause of action is not assignable. 2 And an action for damages resulting from the liquor traffic should be brought by the person entitled to such damages though the party to whom the liquor was sold or who caused the injury died before the action was brought. 3 The sellor of liquor being made jointly liable with the intoxicated person for any wrong committed by him cannot recover damages against the latter for entering his place and behaving in a disorderly manner whilo intoxicated. 4 § 456. Against whom action may be brought — generally. The action lies against the one selling the liquor to the in- toxicated person and not against the one from whom such seller purchased it. 5 It may be against the vendor personally or on 61, 102 N. W. 292. ing Co., 81 Neb. 219, 115 N. W. 761, 1. Kennedy v. Garrigan (S. D. 703. 1909), 121 N. W. 783. 4. Aldrich v. Harvey, 50 Vt. 162, 2. McGee v. McCann, 69 Me. 79. 28 Am. Hop. 501. 3. Murphy v. Willow Springs Brew- 5. Bush v. Murray, 66 Me. 472. § 456] CIVIL DA.MA<;l. A( 1> .1!) his bond, where the statute so permits. And where by statute the principal and surety are jointly ai rally liable upon the bond, it is decided that an action against the surety alone may be brought for damages sustained." In some states tin- sellers and the sureties upon their bonds may be joined. 8 So under the Indiana statute the injured party has a cause of action on the liquor dealer's bond and it is not necessary to first exhausl the principal, but the liability may be enforced in the first in- stance against the principal sureties. 9 And in Michigan the action may likewise be brought in the first instance against the principal and sureties jointly. 1 " And all who contribute to the in- jury complained of may be joined or any one may be sued. 11 Again while both the landlord and seller may be joined in the same action, 12 yet one action may also be brought against the saloon keeper and prosecuted to judgment and another action against the landlord to make the judgment a lien upon his premises. 13 In an action against the seller of liquor to recover for damages caused by an assault upon the plaintiff by an intoxicated person it is not necessary to make the latter a party defendant. 14 <*• Mulcahey v. Givens, 115 Ind. 286,. 17 N. E. 598. 7. Scahill v. Aetna Indemnity Co. (Mich L909), 122 X. \V. 78. s - Eorst v. Lewis. 71 X'eb. 365, 370, 98 X. W. 1046, L03 X. \Y. 460. :»• Brandt v. State, 17 Ind. App. 311, 46 N. E. 682. 10. Anthony v. Krey, 70 Mich. 629, 38 X. W. 603. n. Coleman v. People, 7s ill. App. 210; Fountain v. Draper, 4!> Ind. 441 ; Jones v. Bates, 26 Neb. 693, 42 X. W. 751, 4 L. R. A. 495; Wardell v. M<- Connell, 23 Neb. 152, 36 X. W. 278. See 8 439 herein as to joint lia- bility. In New York it lias been held that each party being liable for his own acts in selling liquors, where liq- uor contributing to the intoxication has been bought at different places, it is not proper to join the different sellers as defendants in the same ac- tion. Jackson v. Brookins, 5 Hun iX. Y.) 530. See Morenus v. Craw- ford, 15 Hun (X. Y.) 45. is. Cox v. Newkirk, 73 Iowa 42, 34 X. W. 492; Loan v. Hiney, 53 Iowa 89, 1 X. W. 865; La France v. Krayer, 12 [owa 1 13. IS. McVey v. Manatt, 80 Iowa 132, 45 N. W. 548, citing La France v. Krayer, 42 Iowa 143: Buckham v. Grape, 65 [owa 035. 17 X. \Y. 755 22 X W. 664. 14. English v. Beard. 51 Ind. 489. 520 CIVIL DAMAGE ACTS. [§ 457 § 457. Complaint or declaration. Where the statute does not specify the form of remedy a common law declaration is good under the civil damage law. 15 The complaint should contain such allegations as are necessary to constitute a cause of action within the terms of the statute. 16 So the pleadings should allege the intoxication of the person by whom the injury has been caused, 17 and should aver that the damages sustained resulted in consequence of a sale of intoxicating liquors. 18 An allegation, however, of the kind of liquor sold is not necessary, 19 and an averment of the sale of " spirituous and in- 15. Kehrig v. Peters, 41 Mich. 475, 2 N. W. 801. 16. Struble v. Nodwift, 11 Ind. 64; Westbrook v. Miller, 98 App. Div. (N. Y.) 590, 90 N. Y. Supp. 558. An allegation that " while in a state of intoxication so that he was incapable of knowing what he was about or taking care of himself he fell " held not equivalent to an alle- gation that " in consequence of the intoxication " he fell. Schwann v. Osborn, 59 Ind. 245. Sufficiency of petition generally see King v. Haley, 86 111. 106, 29 Am. Rep. 14; Smiser v. State, 17 Ind. App. 519, 47 N. E. 229; Roberts v. Taylor, 19 Neb. 184, 27 N. W. 87. Sufficiency of declaration in action by mother for loss of means of support by death of son, see Eddy v. Courtright, 91 Mich. 264, 51 N. W. 887. Sufficiency of declaration in action to recover for taking care of injured person, sec McVey v. Williams, 91 111. App. 144. Sufficiency of declaration in action by wife for loss of sup- port by furnishing of liquor to her husband. See Fletcher v. Forler, 83 Mich. 52, 46 N. W. 1023, 10 L. R. A. 80. Complaint for causing deatb of husband held defective, see Scha- fer v. State, 49 Ind. 460. A misjoinder of counts in tort and assumpsit may be cured by a statute so permitting. Schafer v. Boyce, 41 Mich. 256, 2 N. W. 1. There is a misjoinder where a wife sues for loss or injury to her in one count and in another count sues as a citizen and an informer for the for- feit provided by law. Carter v. Bernstein Bros., 104 Iowa 572, 73 N. W. 1076. Amendment of complaints. — See Brandt v. State, 17 Ind. App. 311, 46 N. E. 682 ; Chase v. Kenniston, 76 Me. 209; Wright v. Treat, 83 Mich. 110, 47 N. W. 243. A complaint should not be dismissed on the ground that no right of action can exist against the vendor of liquors except in cases where it would also lie against the intoxicated person. Quain v. Russell, 8 Hun (N. Y.) 319. 17. McEntee v. Spiehler, 12 Daly (X. Y.) 435. 18. Schafer v. State, 49 Ind. 460. 19. Walser v. Kerrigan, 56 Ind. 301; Edwards v. Brown, 67 Mo. 377. §§458,459] CIVIL DAMAGE ACTS. 521 toxicating liquors to wit whisky " to a minor does not confine the plaintiff in his proofs to thai particular intoxicant. 20 Again it is not error for the court to omit to submit to the jury evidence in support of ;i cause of action not set forth in the privileges or embraced within the issues. 21 § 458. Evidence generally. The cause of action being one created by statute it is essential that facts sufficient to bring the case within the statute must be proved in order to render a defendant liable. 22 The burden rests upon a plaintiff to establish by a fair preponderance of evidence every fact essential to a recovery. 23 So where it is claimed that a person died as the result of intoxication caused by liquors fur- nished by the defendant not only should the sale of liquors to the deceased be proved but also his intoxication and the fact that his death was caused thereby. 24 An allegation, however, in a com- plaint which is not material need not be proved. 25 § 459. Evidence— proof by plaintiff— preponderance sufficient. It is only necessary in this class of cases, though such acts are often declared to be highly penal in their character, for the plain- till' to establish his or her case by a preponderance of the evi- dence. 26 And in such an action the fact that the act is also in- dictable as a crime, does not render necessary a higher degree of proof, a preponderance of evidence only being necessary to es- 20. Flower v. Witkovsky, 69 Midi. showing that he did not contribute to 371, .".T \. W. 364. the injury complained of. 21. Andresen v. .Tetter. 76 Neb. 520, 21. Baker \. Summers, 201 111. 52, 107 N. W. 789. 66 X. E. 302. 22. linker v. Summers, 201 [11. 52, -•">• Schroder v. Crawford, 94 111. 66 N. E. 302; Borgason v. Eklund, 96 357, 34 Am. Rep. 236. 111. App. 443. -°- Chase v. Kenniston, 70 Me. 23. Macl 1 v. Geyer, 53 [owa 615, 209; Kolling v. Bennett, is Ohio C. 6 N. W. 21, holding thai proof of O. 425; Stanton v. Simpson. 4S Vt. sales by the defendant did not of it- 028. self throw upon him the burden of £22 CIVIL DAMAGE ACTS. [§ 460 tablish a cause of action. 27 So it is said in a case in which this question arose, a case which was an action to recover a forfeiture : "It is true that this action, like all penal actions, partakes some- what of the character of punishment, but this does not make it a criminal prosecution. When the legislature gives to the plaintiff a civil action, partly remedial in its nature, it is to be presumed that it is intended that the usual incidents of all civil actions should attach, one of which is that proof by a reasonable prepon- derance of the evidence is sufficient." 28 So it is not necessary, in an action for injury to means of support that the evidence should exclude all reasonable doubt but a preponderance of evi- dence is sufficient to justify a recovery, the action being one to recover damages and not a fine or penalty. 29 § 460. Evidence— facts established by circumstances. The sale of intoxicating liquors as well as injury or accident claimed as the result of such sale may be established by circum- stances. 30 The fact of itself, however, that a person is seen to 27. Welch v. Jugenheimer, 56 Iowa lowing instruction not erroneous. " If II, 8 N. W. G73, 41 Am. Rep. 77. you shall find from the evidence that 28. Roberge v. Burnham, 124 Mass. the deceased went into the saloon of 277. Per Morton, J. the defendant and that the business 2J>. Woods v. Dailey, 211 111 495, of the defendant was to sell intoxi- 71 X. E. 1068, citing Hall v. Barnes, eating liquors, and that deceased was 82 111. 228 ; Robinson v. Randall, 82 sober when he went into the saloon, III. 521 ; Crabtree v. Reed. 50 111. 200; and that he came out of the saloon Nutter v. Balthasser, 78 111. 302; intoxicated, these facts raise a pre- Mitchell v. Hindman, 150 111. 538, 37 sumption that such person obtained X. E. 916; Taylor v. Felsing, 164 111. intoxicating liquor in such saloon, but 331, 46 X. E. 161. such presumption may be overcome by 30. Hall v. Barnes, 82 Til 228; Sul- the proofs and circumstances, and if livan v. Radzuweit, 82 Neb. 657, 118 you shall find from the evidence that X. W. 571; McManigal v. Seaton, 23 the deceased did not procure liquor Neb. 549, 37 X. W. 271 ; McDougall from the defendant that caused him v. Giacomini, 13 Neb. 431, 14 N. W. to be intoxicated or that contributed 150. thereto, you should find for the de- The circumstances may be such fendant." as to raise a presumption of a But where the evidence of sale is sale.— Curran v. Percival, 21 Neb. circumstantial and is contradicted by 434, 32 N. W. 213, holding the fol- positive evidence, the question of a § 4G1] CIVIL DAMAGE ACTS. -•_.;; come out of a saloon intoxicated does not raise any presumption as to a sale of liquor having been made to him in thai place as he may have entered the place intoxicated and the proprietor or his agent have refused to sell him. 81 But if a person wen- seen to enter a saloon in a sober condition, to have remained there for some time and then to have lefl in an intoxicated condition, the circumstances would be such as to justify an inference of sales to him while there. And the circumstances may be such that the owner may be charged with notice of the unlawful sales taking place upon the premises. 32 And where a person is accidentally injured while intoxicated, though there is no direct evidence as to how the injury occurred, the circumstances may he such that it will be inferred that the accident was due to his intoxicated con- dition. 33 Again it is not required that the evidence shall be clear, positive and specific as to the time, place, manner, and each item of loss to authorize the jury to find injury to the support of the family, but that fact may be proved, like any other, by circum- stances. 34 § 461. Evidence generally showing sale. In an action under a civil damage act it is improper to admit evidence of sales of liquor prior to the passage of the act. 1 '""' And in an action for an unlawful sale of liquors it i.s error to allow proof of other unlawful sales to other persons on tin day in question. 86 And declarations made by a person subsequent to an sale is for the jury to determine. :::{ - Colburn v. Spencer, 177 Mass. Hanewacker v. Ferman, 47 111. App. 47:5. 59 \. I 17. 84. Horn v. Smith. 77 111. 381. Sufficiency of evidence tending 85 ' Duboia v ' Miller ' 5 Hun ' X - Y) to show unlawful sales. McQuade v. : "~- holdin 8 1hat an error in admit " Hani,. 65 Vt 482, 27 Atl. 136. ,u "- 3uch evidenee ™* ""' cured hy _„ _ , _ . ,,. an instruction to the jury that they 31. Lovelan v. Briggs, 32 Ilun ., , ,. , . ' ' ,,„ „ __ could net luiil any damages for any- X. Y.) 4/7. ... ,, , ' . .. thing that occurred prior to t he pass- 32. Johnson v. Grimminger, S3 .,,,,, ,,,- ,),,, .,,.( Iowa 10. -is X. W. 1052; Loan v. 86. Hilliker v. Fair, 149 Mich. 444, Etzell, (i-J Iowa 429, 17 X. \\ . Oil. Ill X. W. 1116. 524 CIVIL DAMAGE ACTS. [§ 452 injury received by him while in an intoxicated condition as to where he obtained the liquor are not admissible. 37 Again in an action by a wife for having furnished her husband liquor oc- casioning his intoxication and consequent death, the defendant cannot show that he knew the intemperate habits of the deceased and had on previous occasions refused him liquor, as tending to prove that he did not furnish it upon the occasion in question. 38 But proof of the fact of the sales may be shown by conversations between the wife and her daughter and the defendant. 39 And in an action by a married woman against a saloon keeper for damages on account of the sale of intoxicating liquors to her husband, proof of having furnished liquors to her husband upon the order and promise of payment by a third person is sufficient to sustain the action. 40 § 462. Evidence — life tables. Where an injury to the means of support is claimed as the result of the death of another life tables are properly admissible upon the question of the expectancy of life in order to arrive at a proper estimate of damages for such injury. 41 So evidence may be admitted of the life expectancy of the husband and of his ability during such period to support his wife in an action by her for loss of support resulting from his death. 42 And likewise in an action by a minor for loss of support caused by the death 37. Richards v. Moore, 62 Vt. 217, Michigan. — Merrinane v. Miller, lit Atl. 390. 148 Mich. 412, 111 N. W. 1050. 38. Richards v. Moore, 62 Vt. 217, Nebraska. — Horst v. Lewis, 71 Neb. 19 Atl. 390. 370, 98 N. W. 1046, 103 N. W. 460; •'«>. Radley v. Seider, 99 Mich. 431, Sellars v. Foster, 27 Neb. 118, 42 58 NT. W. 366. N. W. 907. 40. Judge v. Jordan, 81 Iowa 519, New York. — Davis v. Standish, 26 40 N. W. 1077. Hun 608. 41. Indiana. — Smiser v. State, 17 42. Brockway v. Patterson, 72 Ind. App. 519, 47 N. E. 229. Mich. 122, 40 N. W. 192, 1 L. R. A. Iowa.— Peterson v. Broekey (1909), 708. 119 X. W. 967. § 4G3] CIVIL DAMAGE ACTS. 525 of the father such tables may be admissible, 4 '' though not m sarily as the absolute criterion for determining the period for which such loss was to be estimated but as an aid to ascertain whether the period of expectancy would be equal to the period of minority when the parent would be obligated to support the miner. Such tables are not conclusive upon the question of the continuance of life but are given to the jury merely as aid." And they may be considered by the jury in connection with evidence as to the physical condition of the deceased, his vocation and habits. 45 § 463. Injury to the feelings — mental anguish — disgrace. Injury to the feelings and the disgrace which a wife may suffer in consequence of the intoxication of her husband is in some jurisdictions an element to be considered in award- ing exemplary damages. 46 But injury to the feelings, no injury to the health or physically being shown, is not an in- jury to the " person " within the meaning of a civil damage statute. 47 And in order to recover for an injury to the " person " of the plaintiff there must be either an assault, or some actual violence or some physical injury to the person or health, and mere mental anguish, disgrace or a loss of society or companion- ship is not sufficient. 48 If the action is for injury to the means of support, mental pain or anguish is not an element to be con- sidered in estimating the damages. 49 So in an action by a wife 43. Peterson v. Brockey (Iowa 48. Mulford v. Clewell, 21 Ohio St. 1909), 119 X. W. 967. 191. »»• Merrinane v. Miller, 148 Mich. 40. Brautigam v. While, 73 111. 412. Ill X. W. 1050. 56 1 : Meidel v. Antihs, 71 111. 211; 45. Peterson v. Broekey (Iowa Koerner v. Oberly, 56 [nd. 284. Com- 1909), 119 X. \V. 967. See also pare Johnson v. Schultz, 74 Mich. 7.'), Acken v. Tinglehoff (Neb. 1909), 119 II \. \V. 8G5. N. W. 450; Davis v. Borland (Neb. In one of the earlier eases in 1909), 119 X. YV. 454. Illinois it is declared that where the 46. Ford v. Cheever, 1 Mich. G79, Btatute contemplates a recovery for 63 X. W. 975. injury sustained by tin' wife in per- 47. Calloway v. Lay. Ion, 47 Iowa sou. property or means of support, 45G, 29 Am. Rep. 489. mental pain is not an element of 5 o 6 CIVIL DAMAGE ACTS. [§ 463 damages are not recoverable for her wounded feelings or disgrace and evidence to show her loss of social standing by reason of her husband's habits is inadmissible. 50 In some jurisdictions, how- ever, a wife who has sustained injury to her person by reason of her husband becoming intoxicated may also recover for mental suffering resulting therefrom. 51 So under a statute permitting a recovery by a wife who has been injured in person and prop- t it \\ it has been decided that a wife who has been driven by abusive language, threatening and intimidation from her home by an intoxicated husband sustains such physical injury and suf- fering as will sustain action under the statute though no actual violence is used, and that as a part of her actual damages she may recover for injury to her feelings and the indignity suffered. 52 And the words " or otherwise " in a statute allowing a wife to recover damages have been held broad enough to cover injuries to her feelings and to permit the recovery of damages for mental suffering caused by the disgrace and discomfort attendant upon the drunken condition of her husband. 53 In this connection it is decided that a newspaper article giving an account of a saloon row and of the husband's participation therein is admissible as bearing upon the mental anguish of the wife. 54 And evidence of the husband's conviction for drunkenness is admissible as tending to show the extent and nature of the injury suffered by the wife damages to be considered as the fortunate habits the plaintiff suf- 3tatute should be strictly construed. fered in her standing in society, while Weidel v. Anthis, 71 111. 241. it may have been humiliating, yet it 50. Jackson v. Noble, 54 Iowa 641, could not be made the foundation of 7 X. W. 88. The court said: "This a claim to enhance the damages." evidence was not admissible and Per Rathrock, J. i 1 have been excluded. The 51. Ward v. Thompson, 48 Iowa plaintiff in actions of this character 588; Lucker v. Liske, 111 Mich. 683, is entitled to recover for injuries to 70 N. W. 421. her person, property and means of 52. Peterson v. Knoble, 35 Wis. 80. support. Damages are not allowed •'•"»• Radley v. Seider, 99 Mich. 431, on account of wounded feelings or 58 X. W. 366. disgrace. Kearney v. Fitzgerald, 43 54. Lucker v. Iiske, 111 Mich. 683, Iowa 580. If by her husband's un- 70 X. W. 421. §§ 464,465] (1VIL DAMAGE acts. 527 to her fee-lings. 55 But the loss of the companionship of a sober man, and the shame and disgrace of having a drunken husband, cannol be considered by the jury in a suil by the wife for damag< - to h( r mean- of support by the sale of intoxicating liquors to her husband, as an element of her actual damages where auch condi- tions existed long prior to and at the time of the alleged sales, and the testimony fails to show that the wife has suffered any mortification or mental anguish on account of the sale of liquor to her husband by the defendant, or any other person. 68 The doctrine that there can be no recovery for mental suffering is also applicable in the case of an action by a father to recover in the case of the intoxication of a son. 57 § 464. Medical attendance as element of damages. Where a married woman is given by statute a right to recover for all damages sustained by herself and children on account of such traffic and it appears that her husband died as a result of the traffic she may recover not only for loss of means of support but also the reasonable expenses of medicine and medical at- tendance and funeral expenses paid by her. 58 And where liquor is wrongfully sold to a minor the father in an action to recover for the loss of his services may also recover for money expended by him for medical attendance to the son. 59 Again where the plaintiff's wife was injured as a result of the intoxication of his son-in-law it was held in an action to recover therefor that the damages included expenses of medical service.* 60 § 465. Exemplary damages generally. Subject to the qualification that there must be some actual B5. Lucker v. Liske, 111 Mich. 683, B8. Keeling v. Pounner (Neb. To \. \Y. 421. 1909), 120 X. W. 155. 56. Johnson v. Schultz. 74 Mich 7r.. '>'■>■ Volana v. Owen, 9 Hun (X. Y.I 41 X. \V. 865. 558. r>7. Clinton v. Laning, CI Mich. ,! °- Al.lrich v. Sager, 9 Hun (X. 355, 28 X. W. 125. Y.) 537. 528 CIVIL DAMAGE ACTS. [§ 4G5 damage to authorize the recovery of exemplary damages, 61 it maj be stated as a general rule that where the evidence shows a wilful or wanton violation of the law, or reckless or illegal acts and con- duct in utter disregard of the right of others exemplary damages may be assessed. 62 Exemplary damages are not the subject of 61. Bates v. Davis, 76 111. 221; Brantigam v. While, 73 111. 561; Confrey v. Stark, 73 111. 187; Al- brecht v. Walker, 73 111. 69; Fentz v. Meadows, 72 111. 540; Kleedy v. Howe, 72 111. 133; Cxilraore v. Matthews, 67 Me. 517; Gansley v. Perkins, 30 Mich. 492. Where the jury finds that no damages were sustained by the plaintiff for which the defendant is liable the former has no ground for questioning the verdict on the ground of a claimed error in the charge as to exemplary damages. Johnson v. John- son, 145 Mich. 586, 108 N. W. 1011. Evidence of threatening lan- guage or vulgar conduct, not be- ing such as to cause actual injury, is inadmissible as a ground of ex- emplary damages. Calloway v. Lay- don, 47 Iowa 456, 29 Am. Rep. 489. 62. Kennedy Bros. v. Sullivan, 136 111. 94, 26 N. E. 382; England v. Cox. 89 111. App. 551 ; Kellerman v. Arnold, 71 111. 632; Kreiter v. Nichols, 28 Mich. 496; Wilber v. Dwyer, 69 Hun (X. Y.) 507, 23 N. Y. Supp. 395; Rawlins v. Vidvard, 34 Hun (N. Y. 205; compare Roose v. Perkins, 9 Neb. 304, 31 Am. Rep. 409. Evidence of the illegality of the sales sufficiently supplies the elements necessary to an award of exemplary damages: "If sales be made illegally, in violation of the express command of the statute, v. In ther made by principal or agent, in the eye of flic law. as heretofore construed, they are deemed to have been made wilfully and wantonly. The illegality thereof, the violation of the law, by principal or agent supplies all the elements necessary in other cases to show fraud, malice, oppression, or wanton, wilful or reck- less conduct, or criminal indifference to civil obligation, on the part of the defendant and justifies the jury in imposing on the wrong-doer, for his infraction of the law exemplary dam- ages." Pennington v. Gillaspie, (W. Va. 1910), 66 S. E. 1009. Per Miller, J. Selling -without a license.— The fact that a defendant was selling liquors without a license may be con- sidered as a basis for exemplary dam- ages. Davis v. Standish, 26 Hun (N". Y.) 608. It has been held proper to re- fuse to charge that " if the jury award the plaintiff any amount by way of exemplary damages, they should not consider the fact, if such they find it to be, that certain of the illegal sales were made on Sunday." Sibila v. Bahney, 34 Ohio St. 399. Jury not bound to award ex- emplary damages. — Hackett v. Smelsley, 77 111. 109. But see Peter- son v. Brockey (Iowa 1909), 119 N. W. 967. That sale a criminal offense immaterial. — The fact that the sale complained of was a criminal one where sold to a minor does not re- lieve the defendant from his civil lia- bility. Boos v. State, 11 Ind. App. 257, 39 N. E. 197. But in some cases the doctrine is affirmed that where a person may be ( IVIL DAMAGE ACTS. 529 § 466] a claim in the sense that it is necessary to make an avermenl thereof in the petition and they may be allowed by the jury in a proper case without such an averment. 63 And where ;• sum allowed by a jury is within the evidence of the actual damages sustained it will not be said that exemplary damages were allowed. 04 In a clear case of right to exemplary damages a peremptory instruction to that effect is held to be proper. 65 Under all circumstances, however, the amount of exemplary damages which a wife may recover is in the discretion of the jury. 66 But where actions are brought by different persons as a mother and child, exemplary damages should not be awarded in each action.'" § 466. Exemplary damages — statutes as to. By express provision of the statute in some states exemplary damages are allowed. 68 Such a statute simply allowing exem- punished criminally for the sale com- plained of exemplary damages cannot be awarded against him in the civil action under the statute. Schafer v. Smith, G3 Ind. 226; Struble v. Nod- wift, 11 Ind. 64. So in an early case in Indiana it is decided that where the statute makes the same act for which suit is brought a penal offense a provision of law allowing exemplary damages is in violation of a constitutional pro- vision that "no person shall be twice put in jeopardy for the same offense." Koerner v. Oberly, 5G Ind. 284, 2G Am. Rep. 34. And in one of the earlier cases in Illinois it is decided thai while ex- emplary damages may in some cases be awarded by way of compensation they cannot In- awarded by way of punishment for a sale which is un- lawful ami for which a punishment is provided by statute. Albrecht v. Walker. 7:! 111. 69. See also Freese v. Tripp. 70 111. 496. But it is decided in a later case in this state that a wife may recover both her actual and also exemplary damages from the seller though the latter may also be liable to indict- ment for the same act upon which tie- suit is based. Brannon v. Silvernail, 81 111. 434. <;:*• Gustafson v. Wind. 62 fowa 281, 17 \. W. 523. «*• Rude v. Fakes, 143 111. App. 456. <>•"• Merrinane v. Miller, Its Mich. 41-2. Ill X. W. 1052. Compare Pennington v. Gillaspie iW. Va. 1910), 66 S. E. 1009 hold- ing thai exemplary damages no1 be- ing recoverable as a matter of righl it is error to instruct the jury that they should find exemplary damages. <;<>• Fox v. Wunderlich, ti4 Iowa 187, 20 X. W. 7: Goodenough v. Mc- Grew, 44 Iowa 670; Wightman v. Devore, 33 Wis. 570. <;t. Secor v. Taylor. 41 Hun (N. Y.) 123. 68. Rude v. Fakes. 1 13 111. App. 456; Naughton v. Lochiel, 143 111. 530 CIVIL DAMAGE ACTS. [§ 467 plary damages and actual damages is held to make no change in the rules governing the recovery of exemplary damages but places them upon the same footing and subject to the same rules of evidence as other actionable torts. 09 § 467. Exemplary damages — ground for awarding — right to. There must be something as a general rule beyond the mere sale and the resulting damages to warrant the granting of ex- emplary damages. 70 Such damages are said not to be awarded as a matter of right but as a protection to the public and an example to the wrongdoer. 71 And they are not recoverable in every case where a cause of action is made out but circumstances of abuse or aggravation must be shown. 73 So generally to en- title a plaintiff to an award of exemplary damages the conduct of the defendant must have been wanton, reckless, malicious or oppressive or otherwise deserving of condemnation beyond the mere actual damage. 73 In Iowa, however, under the code it has been determined that where actual damages are shown there may be a recovery of exemplary damages and that wilfulness and App. 402; Miller v. Hammers, 93 Iowa 746, 61 N. W. 1087. See also cases cited in preceeding and following section. 69. Campbell v. Harmon, 96 Me. 87, 51 Atl. SOI. 70. Murphy v. Curran, 24 111. App. 475. 71. Campbell v. Harmon, 96 Me. 87, 51 Atl. 801. Not punitory in character. — In Michigan it has been decided that ex- emplary damages while allowable can be given only to compensate injury to feelings caused by the wanton or reck- less acts of the defendant and that it is error to permit the jury to award them under an instruction that they are punitory in character and de- signed to punish the defendant for some positive wrong done to the plain- tiff. Bowden v. Voorheis, 135 Mich. 648, 98 N. W. 406; Boydan v. Hober- stumpf, 129 Mich. 137, 88 N. W. 386. And in West Virginia a provision as to exemplary damages has been held not to mean additional damages as a punishment but damages which will compensate for mental anguish of the wife where the sale was made under circumstances showing malice or wanton, wilful and deliberate dis- regard of her rights. Pegram v. Stortz, 31 W. Va. 220, 6 S. E. 485. 72. Ketcham v. Fox, 52 Hun (N. Y.) 284, 5 N. Y. Supp. 272; Franklin v. Schermerhorn, 8 Hun (N. Y.) 112. 73. Jockers v. Borgman, 29 Kan. 109, 44 Am. Rep. 625; Rosecrants v. Shoemaker, 60 Neb. 4, 26 N. W. 794. §§ 468,469] CIVIL DAMAGE A( TS. r,:;i wanton disregard of the rights of oth< rs arc not essential. 71 And in a recent case in this state it is decided thai under the provision of the statute that the wrongdoer shall be liable for exemplary dam- ages, the awarding of such damages is discretionary with the jury only as to the amount if the wrong is established. 75 And in an early case in Ohio it was held that proof of malice or special circumstances of aggravation were not essential. 76 § 468. Exemplary damages — no breach of peace. The recovery of exemplary damages is not limited to cases where the injury complained of is in the nature of a tort but may be allowed where no breach of the peace has resulted from the alleged sale. 77 And it was held proper to refuse to instruct the jury, " You can only give exemplary damages in cases where the injury complained of, and from which the damage arose, was tortious in its nature; where the act of the intoxicated person was such as to warrant the recovery of exemplary damages against him, as when his act was a breach of the peace, a wilful, wanton injury." 7S § 469. Excessive damages. Where it is claimed as a ground for review that a verdict is excessive and was rendered under the influence of pass and prejudice there must be sonic testimony or fact of record to support the conclusion. 79 So where the case is one in which exemplary damages may be awarded a verdict will not be set T4. Miller v. Hammers, 93 Town be recovered, we do not think it 746, 61 X. W. 1087. should be so restricted in its opera- T5. Peterson v. Brackey (Iowa tion as required by this instruction. 1909), 119 X*. W. 967. There are many cases where 76. Schneider v. Hosier, 21 Ohio Si . emplary damages should be allowed gg when I here is no bn ich of the i 77. Goodenough v. McGrew, 44 and where such damages could noi be [ owa |i7o recovered by the intoxicated pel 7s. Goodenough v. McGrew, 44 Per Rothrock, J. Iowa 670. The court said: "As the 79. Nowotny v. Blair, 32 Neb. 175, statute allows exemplary damages to 49 X. W. 357. 532 CIVIL DAMAGE ACTS. [§ 479 aside as excessive unless so far erroneous as to permit evidence of partiality, passion, corruption or prejudice on the part of the jury. 80 And in determining whether a verdict for loss of support furnished by a son is excessive the court will not enter into a computation as to the probable costs of the bare necessaries of her support during the probable term of her life. 81 Where the damages awarded are excessive the court on error, on a remittitur of such excess, may affirm the judgment. 82 § 470. Injury to person or property generally. The injury to person or property in such a statute refers to an injury to or in violation of a legal right in actual enjoyment before and at the time of the injury thereto. 83 As we have stated elsewhere in order to constitute an injury done to the " person " there must have been some actual violence or some physical injury to the health or person, a loss of society of a husband, or mental anguish or disgrace not being such within the meaning of the statute. 84 A person is injured in his property in case of some actual loss of or injury to it, as where a liquor dealer placed an intoxicated person in a sleigh and owing to the latter's intoxica- tion he was unable to manage the horse which ran away and was killed, in which case the liquor dealer was held liable to the owner of the horse for its value. 85 And where a husband sold, while intoxicated, a horse belonging to his wife, it was held that she could recover its value of the person selling the liquor which produced the intoxication. 86 But whore a minor becomes in- toxicated and is incapacitated from work by reason thereof an employer with whom he has a verbal contract in respect to fur- so. Pegram v. Stortz, 31 W. Va. 84. § 463 herein. See Mulford v. 220, 6 S. E. 185. Clewell, 21 Ohio St. 191. 81. De Puy v. Cook, 90 Hun 85. Dunlap v. Wagner, 85 Ind. 529, (N. V.) 43, 35 X. Y. Supp. 632. 44 Am. Rep. 42. 82. Sibila v. Bahney, 34 Ohio St. 86. Woolheather v. Risley, 38 Iowa 399. 486. v. Ogden, 56 111. App. 100. g 171 j CIVIL DAMAGE A< TS. 533 nishing supplies and medical attendance, and who furnishes such attendance, is not injured in his "property" within the meaning of such a statute. 87 § 471. Statute as to allowance for taking care of person. By statute in some states provision has been made allowing one taking care of an intoxicated person a certain sum per day. So under the act of 1872, in Illinois, one who took care of a person while drunk or while sick as a result of his intoxication, was en- titled to recover a certain sum for each day. Under this act the sum was held recoverable by one who took care of a person who broke his leg while intoxicated. 88 And a statute providing that neither a husband nor wife may recover for services rendered for the other is held to apply only to suits between husband and wife and not to prevent a wife recovering for services rendered caring for an intoxicated husband in an action under a civil damage statute allowing for services rendered in caring and providing for an injured person. 89 So under a statute allowing so much per day to " every person " who takes care of an intoxicated person it has been decided that a woman who takes care of her husband in such a case is entitled to recover. 91 But under a statute allowing such a sum per day a saloon keeper is only responsible for the natural and probable results of the sale and it is not such a result that the person intoxicated should receive bodily injury by the wilful criminal act of a third party. 92 And under a statute authorizing a recovery of a certain sum per day by one who takes charge of and provides for an intoxicated person, a physician who treats professionally a person who is injured while intoxicated, is not within its meaning. 93 87. Streever v. Birth. 62 Hun W. Wightman v. Deverc, 33 Wis \. Y.) 298, 17 N. Y. Supp. 195. 88. Brannan v. Adams, 76 [11. 331 89. McVey v. Williams, 91 111. App 144. 12 (\. Y.) 298. 17 X. Y. Supp. 195. 57 °- 02. Schulte v. Menke, 111 111. App. 212. 89. McVey v. Williams. 91 111. App. „ :{i Sansom v. Greenough, 55 Iowa 534 CIVIL DAMAGE ACTS. [§ 472 § 472. Means of support — where legal obligation. Injury to the means of support referred to in such a statute is generally held to mean and include such support as the person would be legally bound to furnish. 94 Thus, where a father is obligated by statute to support an adult son under certain con- ditions and such conditions exist by reason of such son being injured while intoxicated so as to render him to a great extent helpless, the father is entitled to recover damages therefor. 95 And where a sister is unable to provide for herself and under the law of the state is entitled to legal support from her brother she may recover for loss of support owing to his continual intoxicated condition where the statute gives a right of recovery to any one so injured in their means of support. 96 And this without regard to whether she could have enforced such right of support or not. 97 And where a son who may be compelled by law to support a parent voluntarily assumes such support, this answers the requirements 94. Jury v. Ogden, 56 111. App. 100. 95. Clinton v. Laning, 61 Mich. 355, 28 N. W. 125. 96. Nagle v. Keller, 141 111. App. 444. 97. Nagle v. Keller, 237 111. 431, 86 N. E. 694. The court said: "The statute gives a cause of action to any person who shall be injured in per- son, property, or means of support cither by an intoxicated person or in equence of the intoxication of any person, against the person causing such intoxication. There seems to be no room for construction. It is not necessary that the person injured should sustain any business or per- sonal relation to the intoxicated per- son. Any person sustaining an in- jury of the kind mentioned, whether directly by the act of an intoxicated pf-rson or indirectly in consequence of his intoxication, may maintain the action. King v. Haley, 86 111. 106, 29 Am. Rep. 14. The appellee was, in fact, supported by her brother. She was dependent upon him and he was legally liable for her support. She was wholly without means and un- able to earn a livelihood. Under the circumstances disclosed by the record the statute (Hurd's Rev. St. 1908, c. 107) imposed upon the brother the duly of supporting her. People v. Hill, 163 111. 186, 46 N. E. 796, 3(1 L. R. A. 634; Danley v. Hibbard, 222 111. 88, 78 N. E. 39. Whether it was a legal right which appellee could have enforced against her brother or not, it was a legal liability which the law imposed upon him and provided means for enforcing, of which she was receiving the benefit, and which she was deprived of in consequence of his intoxication. The statute gives her a cause of action for such deprivation." Per Dunn, J. e 473-1 CIVIL DA.MAC1. A< T> 535 of the law as effectually as if rendered by compulsion, and a mother who has been deprived of her means of supporl by the death of her son caused by intoxication may recover theref* So where a mother is injured in or deprived of her means of support by the death of her son, she may recover therefor and the fact that such aid was furnished by the son voluntarily does not affect her right to recover, the son being also under a Legal obli- gation to support her." In estimating the damages to a father for injuries to a son, rendering the latter helpless and imposing upon the father the duty of supporting him, the period of time for computing them should not be the son's expectancy of life, but the period of future support should be based on the life expectancy of the father. 1 § 473. Injury to "means of support "—generally— action by wife. These statutes ordinarily provide for a recovery for injury to means of support having in view more particularly the fact that by the intoxication of a man his wife and children are in many cases deprived of that support which the husband and father would be in a position to give them except for the result of his becoming intoxicated. The wife is entitled to support at the hands of her husband and as referring to her the phrase " u, of support" includes what the husband might have earned by his labor and attention to business and contributed to the support of the family. 2 Where it is shown that the husband's death was produced by intoxication caused by liquors furnished by the de- fendant, an inference arises of an injury to the wife's means of support, in the absence of other proof, which will shift the burden of proof to the defendant. The right of sin-port is not limited to 98. DePiiv v. Cook. 00 TTun 1. Clinton v. Laning, 61 Mich. 355, (X. Y.) 43, 35 X. V. Supp. 632. 28 N. W. 125. no. Eddy v. CourtrigM, 01 Mich. -• Wightman v. Devere. 33 Wis. 264, 51 X. W. 887. 570. 536 CIVIL DAMAGE ACTS. [§ 473 the supplying of the bare necessaries of life but embraces com- forts such as are suitable to the wife's situation and the husband's condition in life. 4 The term is held to embrace all those resources from which the necessaries and comforts of life are or may be supplied such as lands, goods, salaries, wages or other sources of income. 5 So it has been held proper to instruct the jury that there is a legal obligation on the part of the husband to support his wife and that this right of support is not limited to supplying the bare necessaries of life, but includes comforts and whatever is suitable to the wife's situation and the husband's condition in life, and that whatever lessens or destroys her husband's ability to supply her with suitable comforts to that extent injures her means of support, even though she is not thereby deprived of the necessaries of life. 6 And a wife, in order to recover for loss to her means of support, need not show that she has been in whole or in part without present means of support, it being sufficient if her future means of support have been cut off or diminished below what is reasonable for a person in her station of life and below what they otherwise would have been. 7 But though the right of support is not limited to the bare necessaries of life, 3. Flynn v. Fogarty, 106 111. 263. the duty of furnishing the wife the 4. Hackett v. Smelsley, 77 111. " comforts and surroundings reasona- 109; Thill v. Pohlman, 76 Iowa 638, ble and necessary for the position in 41 N. W. 385 ; Gorey v. Kelly, 64 Neb. society in which she lived " and that 605, 90 N. W. 554. if he failed to so " provide for her " 5. Meidel v. Anthis, 71 111. 241. and such failure resulted from the in- 6. McMahon v. Sankey, 133 111. toxication caused or contributed to by 636, 24 N. E. 1C27. defendant she could recover, there An instruction has been held to be being nothing to show the station she substantially correct which advises occupied or that she had in the past the jury that a wife may be injured been provided for in the manner in- in her means of support when her dicated, as the liability is not what husband's ability to furnish her with the husband ought to have done but the comforts of life is lessened or de- what he had done before defendant's stroyed, although she may not be de- tort. Bellison v. Apland, 115 Iowa prived of the bare necessaries of life. 599, 89 N. W. 22. Maloney v. Dailey, 67 111. App. 427. 7. Mulford v. Clewell, 21 Ohio St. In Iowa it, has been held improper 191. to charge that the husband is under § 474] CIVIL DAMAGE acts. 537 in no case can the judgment be for a greater sum than the value of the means of support of which the plaintiff has been deprived. 8 Where the claim for damages is Imsed on an injury to the plain- tiff's means of support the recovery should be Limited thereto and it is improper to instruct the jury that there may I"- a recovery for injuries to property, person or means of support.'' And the object of such a statute being to protect a wife and children from want caused by the loss of support of the husband and father, it has been decided that if he has abundance of means of support for himself and family the fact that liquor is sold to him by means of which he becomes intoxicated does not entitle a wife to a recovery in the absence of some injury to the person of the wife, to the property or to her means of support. 10 Under the New York statute there has been held to be no distinction be- tween cases in which the loss of the means of support is the direct result of the intoxication and those in which it is the remote result thereof. 11 And the liability in such actions for injury to " means of support " is held not to be confined to cases of injury resulting from the drunkenness, immediately, and during its con- tinuance, but extends as well to cases where the injury results from insanity, sickness or inability, induced by intoxication. 12 § 474. Means of support — right of action generally — defenses. A wife must bring herself within the statute in order to entitle her to recover. 13 She is a person " aggrieved," within the mean- ing of that word as used in such a statute and may recover for 8. Roose v. Perkins, Neb. 304. 2 13. Hellerman v. Arnold, 71 111. \. W. 715, 31 Am. Rep. 409. 632. 9. Delfel v. Hanson, 2 Wash. 194, Must show lawful marriage.— 26 Pac 220 I" Vermont it has been decided that ,_ _ . _, , _„ T11 10 - the dependency referred to in Buch a l<>. Con f rev v. Stark, tl 111. IS*. ' ■ statute must be a legal one and that 11. McCarty v. Wells, 51 Hun a wife 8uing must ahow her ma rriage (N. Y.) 171. 4 N. Y. Supp. 072. ]awfu] Qr fl ^ ^ m> was |egiti . 12. Mulford v. Clewell, 21 Ohio St. mate< Good v Towns, 56 Vt. 410. 4^ 191. Am Hep. 799. 538 CIVIL DAMAGE ACTS. [§ 475 sale of liquor to her husband who is an habitual drunkard without regard to whether the judgment recovered would be separate or community property. 14 Where the husband has no other means of support of his wife than his wages, an injury which cuts these off is an injury to the wife's means of support. 15 And the taking of liquor by the husband is not contributory negligence preventing the wife from recovering. 16 Nor is the fact that the wife signed the petition for the defendant's license a bar to an action by her under the civil damage statute, as by such act on her part she does not consent to an unlawful sale of liquors by the licensee. 17 And in an action by a wife, the fact that the liquors drank by the husband were bought by another person does not preclude a recovery. 18 Again, a statement by the purchaser to a saloon keeper that he wished the liquor for medicinal purposes does not re- lieve the latter from liability as such a dealer is not authorized to sell for that purpose any more than any other. 19 In an action to recover for an injury to a wife it is not necessary to join her husband as plaintiff, as it is the intention of such an act to protect the wife from the effects of her husband's indulgence and to require that he should be joined or his consent given, would tend to nullify the law creating the right. 20 § 475. Means of support — income of wife or ability to labor im- material. As the husband is under a legal obligation to support his wife the fact that she may have means of support of her own should 14. Burlew v. Schiller, 41 Tex. Civ. 18. Carter v. Bernstein Bros., 104 App. 202. 92 S. W. 814, refusing to Iowa 572, 73 N. W. 1076; compare follow Wartelsky v. McGee, 10 Tex. Dudley v. Parker, 132 N. Y. 380, 30 Civ. App. 22D. 30 S. W. 69. N. E. 737, aff'g 55 Hun 29, 8 N. Y. 15. Thomas v. Dansby, 74 Mich. Supp. 600. 398, 11 X. W. 1088. l J> - McDonald v. Casey, 84 Mich. 1<>. Davies v. McKnight, 140 Pa. 505, 47 N. W. 1104. St. 010. 23 Atl. 320. 20. Wright v. Tipton, 92 Tex. 108, 17. Jockera v. Borgman, 29 Kan. 46 S. W. 629. 109, 44 Am. Rep. 025. §§ 470,477] « IVIL DAMAGE A( I 3. ;,:;:, not affect her right to recover for Loss of means of support. 21 And because a wife may lie able-bodied ami can earn a livelihood it docs imt follow thai .-he does not suffer injury in mean- of support by loss of her legal supporter, nor doe.- such a conclusion follow from the fact that she may have independent means her own. 2 - So though a wife may be in receipt of funds from her children as well as from her husband, ye1 if the income from tho latter is diminished or cut off such injury is an injury to her means of support, without regard to what may be contributed to her by her children. 23 § 476. Means of support — action by wife — effect of divorce. Where such a right of action has accrued in favor of a married woman, it is not lost by the fact of her subsequently obtaining a divorce. The existence of this relation is only essential under the statute to the inception of the right. 24 § 477. Means of support — action by wife — pleading. A complaint by a wife alleging that her husband was intoxi- cated by liquor purchased of the defendants, and thereby neglected his work, and squandered his money and damaged the plaintiff in her means of support, has been held to sufficiently show how she was injured. 25 And it is sufficient in an action by a wife to allege that she was injured in her means of support in con- sequence of the intoxication, but under such a declaration she can only prove the extent of the injury to her means of support which she had sustained as a necessary consequence of the hus- band's intoxication, as that resulting from \n> inability to labor while so intoxicated. 26 21. Hackett v. Smelsley, 77 111. 636, 24 X. E. 1027. 109. -'• Nordin v. Kjos, 13 S. D. 407. 22. Betting v. Hobbett, 142 111. 72. s:i X. W. :>7:;. 30 X. E. 104S. citing Haeketl v. 25. Barnaby v. Wood, 50 Ind. 405. Smelsley. 77 111. 122. - ,: - Pegram v. Stortz, 31 W. Va. 23. McMahon v. Sankey, 13:5 111. 220. 6 S. E, 185. 540 CIVIL DAMAGE ACTS. rj 47s § 478. Means of support — action by wife — evidence of earnings and financial condition. In an action by a wife to recover for injury to her means of support, evidence is properly admissible as to what were the means of support furnished by the husband in order that the jury may properly estimate what damages may be awarded her for the injury she has sustained. 27 In estimating the damages the jury may consider the situation of the deceased, his annual earnings, his estate, if any, his habits and health and his reason- able expectation of life. 28 So the husband's wages and earnings are to be considered in an action by his widow to recover for injury to her means of support resulting from his death. 29 And evidence tending to prove that the money earned by the husband while living was the source of and devoted to the support of the wife and children is admissible. 30 So a wife may testify as to what her husband's earnings were and how much per week she received therefrom either in cash or otherwise. 31 And evidence of the prosperity and financial condition of plaintiff's husband is admissible as showing plaintiff's means of support. 32 So in an action by a wife evidence that the husband was in consequence of the wrong alleged reduced from a prosperous business now to a condition bordering upon imbecility and financial insolvency has been held to be properly admitted. 33 And evidence in an action for loss of a husband's support, that he had a shop of his 27. Mayers v. Smith, 121 111. 442, Flynn v. Fogarty, 106 111. 203. 13 N. E. 210. 29. Betting v. Hobbett, 142 111. 72, 28. Dunlavey v. Watson, 38 Iowa 30 N. E. 1048. 398; Boose v. Perkins, 9 Neb. 304, 2 30. Gran v. Houston, 45 Web. 813, N. W. 714. 31 Am. Rep. 409, holding 04 N. W. 245. that the Carlisle tables may be in- 31. Brandt v. McEntee, 53 111. App. troduced where deceased was a 467. strong, robust man. 32. Manzer v. Phillips, 139 Mich. As showing the injury sustained by 01, 102 N. VV. 292, citing Weiser v. loss of support from death of hus- Welch, 112 Mich. 134, 70 N. W. 438. band evidence is proper of the aire, 33. Kliment v. Corcoran, 51 Neb. physical condition, habits of industry 142, 70 N. W. 910. and thrift and income of the deceased. §§ 479,480] CIVIL DAMAGE ACTS. .-,11 own, was a competent barber, and when sober furnished proper support for his wife and child, is competent. 34 Bui conjectures as to what the husband would have made in any given case of business management had he lived, are not a proper basis for the computation of damages. 35 § 479. Means of support — action by wife — evidence as to prior conduct. In an action by a wife to recover for an injury caused by a sale of liquor to her husband, evidence of the extent of the hus- band's drinking at a time long prior to that covered by the action is immaterial. 30 So the question as to the conduct of the husband previous to the sale of liquor to him by the defendant, which caused or contributed to the intoxication producing the injury to the wife's means of support is immaterial. 37 But while the fact may be true that the husband was of intemperate habits and thai this does not preclude a right to recover, yet evidence of such fact may properly be admitted as bearing upon the measure of damages. 38 properly be admitted as bearing upon the measure of damages. 38 § 480. Action by wife — evidence as to age and number of chil- dren. In an action by a wife to recover for the injury to her, evidence of the number and ages of the children is not admissible. 39 The action is to recover for injury to her means of support and is limited thereto since where there arc children each child may sue •'«»• Garrigan v. Kennedy, 19 S. D. :?s - Uldrich v. Gilmore, 35 Xeb. 11, 101 N. W. L081. - ss - 53 X. W. 135. 85. Karan v. Pease, 45 [11. App. ;{!> - Welch v. Jugenheimer, .">(; Iowa 382. 11, 8 X. W. 673, II Am. Rep. 77: 36. League v. Ehmke, 120 Iowa Bugging v. Kavanagh, 52 [owa 368; 464, 94 N. W. 938. Johnson v. Schultz, 74 Mich. 7.".. 41 37. Woolheather v. Risley, 38 Iowa N. W. 865; Larzelere v. Kirchges- 4SG. sner, 7:5 Mich. 276, 41 X. \V. 4S8. 542 CIVIL DAMAGE ACTS. [§ 481 and recover for himself. 40 So it was held to be error to permit the plaintiff in an action to recover for unlawful sale of liquor to her husband to testify that she had a three-year old child. 41 But in South Dakota it has been decided that evidence in an action for loss of support from intoxicating liquor sold by de- fendant to plaintiff's husband that she had a child dependent on her for support is competent. 42 And though evidence as to the age and number of minor children is held to be inadmissible in a suit by a wife, yet it has been held admissible in a action by a minor son. 43 § 481. Means of support— action by wife— measure of damages — evidence. The measure of damages for loss to means of support of a wife should not be the amount of loss occasioned to the husband's estate, but the diminution thereby if any resulting to her means of present and future support. 44 As bearing upon the measure 40. Roseerants v. Shoemaker, 60 Mich. 4, 26 X. W. 794. 41. Boydan v. Haberstumpf, 129 Mich. 137, 88 N. W. 386. 42. Garrigan v. Kennedy, 19 S. D. 11, 101 N. W. 1081. 43. Shull v. Arie, 113 Iowa 170, 84 X. W. 1031. 44. Mulford v. Clewell, 21 Ohio St. 191. Instruction as to wife's meas- ure of damages for unlawful sales to her husband held correct. — " In measuring the dam- ages in this case, if you find the plaintiff to be entitled to any dam- ages by a preponderance of evidence, you shall lake into consideration her station in life, the habits of her hus- band in providing for her support, and the support furnished to her prior to the illegal sales, if any, you find to be proved. Plaintiff cannot recover the money spent by her husband in defendant's saloon if any. She is not entitled to all the wages earned by her hus- band. At the most, plaintiff is only entitled to such support as she would have received but for the sales, if any, that you find to have been made to her husband illegally, and then only to such necessaries and comforts as are suitable to a wife in her station and situation in life and her husband's station and situ- ation in life. She is not entitled in any case to luxuries. There has been evidence in this case of the earnings of the husband, but T charge you that his earnings alone is not the criterion to measure her support." McNetton v. Herb (Mich. 1909), 123 X. W. 17. "Where a person is injured hy another while intoxicated the actual § 481] CIVIL DAMAGE A< I -. i43 of damages it is proper in an action by a wife to show the jury the nature and character of the injuries received for the purpose i't' enabling them to determine the extenl to which his earning capacity had been impaired. 46 So evidence is proper showing any want of or inability of a husband to obtain employ] caused by previous habits of intoxication resulting from Bales by the defendant to him. 40 And in an action by a wife for loss of support caused by an injury to her husband while intoxicated, it is proper to permit her to t< stify that during the time he was laid up she had to call on the public authorities for help. 47 And a husband is a competent witness in an action by a wife to recover damages for an injury sustained by h< r as the result of the sale of intoxicating liquors to her husband. 48 So he may be permitted damages which may be recovered in an action by the wife may include the amount due for medical attendance, the value of the wife's services in nursing the husband and the loss to her means of support by his dimin- ished ability to labor. Thomas v. Dansby, 74 Mich. 398, 41 X. W. 1088. Mitigation of damages. — It has been decided that a judgment obtained by the wife for injury to her mems of support is admissible in an action against another party for injuries ac- cruing during the same period for the purpose of showing the actual extent of the' wrong done by the de- fendant. Engleken v. "Webber, 47 Iowa 558. But in an action by a wife, in or- der to render admissible evidence of recoveries from other parties to re- duce damages, it must be shown that such recoveries were for sales during the same time as thai covered by the alleged sales by the defendant. Jack- son v. Xoble, 54 Iowa 641, 7 X. W. 88. 45. Faivre v. Mandereheid, 117 Iowa 724, 90 X. W. 76. Wliere it appeared from the evi- dence that plaintiff's husband while intoxicated fell and broke his leg it was held proper to permit the wife to testify that "he is not able to work now like he did before he got his leg broke." Eastwood v. Klamm (Neb. 1909), 120 X. W. 14!). 4G. Roth v. Eppy, 80 111. 283. 47. Eastwood v. Klamm 1909), 120 X. W. 1 to. See also Acken v. Tinglehoff, (Xeb. 1909), 110 X. \Y. 456, wherein it is said: " It was necessary for the plain- tiff to prove that the family was not supported by her husband and it was perfectly proper to prove that the sub- sistence of the family was obtained from other sources.'" Per Efferson, C. In an action by a wife for loss of means of support evidence that was supported by her own labor and by the county is material. Fox v. Underlich, 64 Iowa 1S7. 20 X. W. 7. •is. Davenport v. Ryan, SI 111. 218. 544 CIVIL DAMAGE ACTS. [§ 481 to state bow much he paid defendant for liquor or tending to show the injury received by the wife in her means of support. 49 And it has been held that the wife may recover from the saloon keeper money which he received from the husband for liquors. 50 Again evidence is admissible of money borrowed by a husband to pay for treatment for the liquor habit in an action by the wife as tending to show an injury to her means of support. 51 And in an action by the wife it is error to instruct the jury that the husband's previous habit of becoming intoxicated should be considered in aggravation of damages where it does not appear that the defendant was acquainted with such previous habit. 52 But where a wife is given a cause of action for different injuries, and in the declaration she only alleges one injury, the evidence should be confined to such injury. 53 So where a wife only alleges injury to her means of support, evidence tending to show ill- 49. Ward v. Thompson, 48 Iowa 588. What proportion -was paid to the defendant may be stated by the husband. Hemmens v. Bentley, 32 Mich. 89. 50. Rouse v. Melsheimer, 82 Mich. 172, 46 N. W. 372. But see Manzer v. Phillips, 139 Mich. 61, 102 N. W. 292, holding that error in the admission of testimony as to the amount spent by plaintiff's husband in defendant's saloon is cured by subsequently charging the jury that no recovery can be had for such money. 51. Maloney v. Dailey, 67 111. App. 427. 52. Goodenough v. McGrew, 44 Iowa (170. In an action by a wife evidence that her husband had been a habitual drunkard for several years has been held inadmissible to reduce the meas- ure of damages though it may be ad- missible on behalf of plaintiff to show an unlawful sale. Huff v. Aultman, 69 Iowa 71, 28 N. W. 440, 58 Am. Rep. 213, citing Woolheather v. Ris- ley, 38 Iowa 486. Where the evidence showed that the husband had been intemperate and that the wife had supported herself and partly supported him, a charge to the jury which directed them in giv- ing damages to estimate the loss of the sober, intelligent society of the husband and the loss of want of means of support was held to be in- appropriate it being declared that while the defendants should be held liable for the injury they have act- ually inflicted, their liability should be measured by the effects produced upon the husband and wife as they were, and not as they might have been. Gansley v. Perkins, 30 Mich. 492. 53. Hackett v. Smelsley, 77 111. 109. §§ 482,483] CIVIL DAMAGE ACTS. 545 treatment of her by him while intoxicated should not be ad- mitted. 54 § 482. Action by wife — physical suffering — threats — abusive lan- guage. In an action by a wife it is competent to show the ph;. suffering occasioned l>y want and neglect as the resull of her husband's intemperate habits. 55 And injury to health resulting from threats of bodily injury may be considered in estimating the wife's damages. 50 So where a husband while crazed by drink drives his wife from the home into the cold whereby she is made sick and suffers pain, loss of time, and expense in being cured, she may recover in an action against the seller for the damages caused by such act. 57 And in an action by a wife, evidence of the change produced in her husband's disposition by the use of liq- uor such as that, when sober he was kind, but that when intoxicated he was quarrelsome is properly admissible. 58 But it has been held that evidence of the use of abusive language to the plaintiff by her husband when intoxicated is not admissible, it not being shown that the plaintiff's health was thereby affected. 59 And it has also been decided that in an action for loss of means of support, injury to the wife's health caused by overwork, is not a proper element of damages. 60 § 483. Action by wife — assault by husband. A sale against protest of the wife to an habitual drunkard who 04. McLees v. Niles, 93 111. App. Evidence as to difference in the 442. treatment of his family by a person 55- Acken v. Tinglehoff (Neb. while intoxicated held properly ad- 1909), 119 N. W. 456. mitted. See Birkman v. Fahrenthold TO. League v. Ehmke, 120 Iowa (Tex. Civ. App. 1908), 114 S. W. 429. 464, 94 X. \Y. 938. &»• Welch v. Jugenheimer, 56 Iowa 57. Beem v. Chestnut, 120 Ind. 390, 11, S \". W. 673, II Am. Rep. 77. 22 N. E. 303. <;<>. Elshire v. Schuyler, 15 Neb. 58. Eastwood v. Klamm (Neb. 561, 20 N. \V. 29. 1909), 120 N. W. 149. 546 CIVIL DAMAGE ACTS. [§ 484 afterwards commits an assault and battery on her gives the latter a right to recover therefor. 61 So in Massachusetts the rule pre- vails that where a husband assaults his wife while in an intoxi- cated condition she may recover for the injuries so sustained from one who by selling liquor to the husband has caused such intoxication in whole or in part. 02 In estimating the damages to a woman from an assault upon her by an intoxicated husband as a result of which she prematurely gives birth to a dead child, the jury may consider the pain caused thereby. 63 But where a wife in her complaint claims damages for a certain period prior thereto, evidence is not properly admissible of an assault upon her prior to the time covered by the allegations. 64 § 484. Action by wife — injury to property. A wife may recover damages sustained by her by reason of her money being spent by her husband for intoxicating liquors or while intoxicated. 65 So a wife may recover for the loss of a horse owned by her where the proximate cause of such loss was the in- toxication of her husband. 60 And where personal property of a wife is lost or destroyed through the intoxication of her husband and her estate is thereby diminished and she had a right of action against her husband therefor which action if commenced would not have abated by her death she may under the civil damage act giving the right to recover for injury to person or property, re- cover therefor from the person causing or contributing to the in- toxication and an action so commenced by her will not abate on her death. 67 61. Wilson v. Booth, 57 Mich. 249, 64. Applegate v. Winebrenner, 67 23 N. W. 799. Iowa 235 > 25 N - w - 148 - 62. Minot v. Doherty (Mass. 1909) 65. Greenlee v. Schoenheit, 23 Neb. 669, 37 N. W. 600. 89 N. E. 188, citing Bryant v. Tidge- eG . Barkg y Woodruffj 12 m App . well, 133 Mass. 86. 96. 63. Minot v. Doherty (Mass. 1909), 67. Morenus v. Crawford, 51 Hun 89 N. E. 188. (N. Y.) 89, 5 N. Y. Supp. 453. § is:,j CIVIL DAMAGE ACTS. 547 § 485. Action by wife — consent or acquiescence of. In most jurisdictions the rule prevails that the righl of a wife to recover for injuries sustained as the result of the intoxication of her husband may be barred by conducl on her part which amounts to a consent to or acquiescence in his drinking. So a wife cannot recover damages againsl one who sells intoxicating liquor to her husband, for an injur}- to her person <>r estate, if she voluntarily drinks with him or sanctions the sale to him. 68 So where a wife permits her husband to continue in her presence to drink liquor when she has it in her power to destroy the same and is not prevented through fear or other means from so doing and death ensues from such drinking she will he regarded as having been so far instrumental in bringing the injury upon her- self as will prevent a recovery. 69 And the wife cannot recover damages for injuries committed by her husband upon herself while he was intoxicated where she contributed to his intoxication by purchasing the liquors or uniting with him in drinking them. 70 But a purchase by a wife from the defendant of liquor for her husband either under compulsion or to keep him at home does not defeat her right of action. 71 And the fact that a wife may have purchased liquors and taken them to the home for the purpose of detaining her husband there will not deprive her of the right to bring an action as authorized by statute. 72 In Nebraska the rule 6S. Kearney v. Fitzgerald, 43 Iowa preclude her from a recovery for an 580. injury caused by his death as a result Question for jury. — The question of intoxication. HufT v. Aultman, G9 whether a wife voluntarily contri- Iowa 71. 28 X. W. 110, 58 Am. St. tinted to the injury under the facts Rep. 213. of the ease may properly l»' left to 69. Re^et v. Bell. 77 111 the jury with an instruction that if TO. Engleken v. Hilger, 4:i Iowa she did she cannot recover. Huff v. 563. Aultman. ii!) Iowa 71. 28 X. W. 440, See also Elliott v. Barry. 34 Hun 58 Am. Rep. 213. (X. Y.) 129. So it is a c|iicsticm for the jury 71. Ward v. Thompson, 48 Iowa whether a wife has so far voluntarily 588. contributed to the injury by consent- "-• Kearney v. Fitzgerald, 13 Iowa ing to sales to her husband so as to 580. 548 CIVIL DAMAGE ACTS. [§ 4£G prevails that the fact that the wife consented to or acquiesced in the sale or gift of intoxicating liquor to her husband is no defense or bar to an action for damages by the wife and in behalf of her minor children for loss of means of support. 73 And in Illinois it is held in some cases that evidence that the wife visited other places than defendant's and drank liquor with her husband is not a liar to the action but should be considered in mitigation of dam- ages. 74 § 486. Action by wife — consent or acquiescence of continued. Though a wife may have in the past encouraged her husband in the formation of the drinking habit yet if she afterwards attempts to prevent his further use of liquor she will not be de- prived of her right to recover under the statute. 75 And the fact that the wife has upon other occasions ordered the sale of liquors to her husband is not a bar to her recovery of damages for a sale upon a particular occasion if she did not assent thereto. 76 And the giving of money by a wife to her husband, for the purpose of procuring liquor to drink, would not justify the inference that she contributed to his intoxication, in the absence of proof that he obtained the liquor by means of such money. 77 So a letter from a woman objecting to sales to her husband and stating " I would not object to an occasional drink, if he would drink and go about his business " is not a bar to an action for damages caused by his 73. Gran v. Houston, 45 Neb. 813, damages in an action by a wife evi- 64 N. W. 245. denee may properly be received in That liquors were furnished to the mitigation thereof of the husband and husband with the knowledge and con- wife drinking together. Roth v. Eppy, sent of the wife is held in a later case 80 111. 283. in Nebraska to be no defence to an 75. Greener v. Williams (Ind. A. C. action by her it being declared that 1909), 89 N. E. 377. the question is no longer an open one 70. Rafferty v. Buekman, 46 Iowa in that jurisdiction. Kliment v. Cor- 195; McDonald v. Casey, 84 Mich, coran, 51 Neb. 142, 70 N. W. 910. 505, 47 N. W. 1104. 74. Hackett v. Smelsley, 77 111. 77. Rafferty v. Buekman, 46 Iowa 109. 195. On the question of exemplary 187] < 1\ ||, DAMAGE ACTS. 549 becoming a habitual drunkard and can only be considered in mitigation of damages, if at all. 78 Again the fact that a wife has authorized the sale of liquor to her husband will not prevenl her recovering damages resulting from injuries received by her hus- band at the hands of an intoxicated person to whom the dealer receiving such permission has furnished liquors, as such a consent will not preclude her from recovering for an injury resulting from the intoxication of another who caused the injury to her hus- band. 79 § 487. Action by widow — death of husband. A widow may recover for loss of support caused by the death of her husband as a result of intoxication where death follows in consequence of some physical injury or disease of which the in- toxication was the proximate cause. 80 Under a statute giving a 78. Earp v. Lilly, 217 111. 582, 75 N. E. 552, citing Hackett v. Smelsley, 77 111. 109. 79. Thomas v. Dansby, 74 Mich. 398, 41 X. W. 1088. 80. Illinois— Smith v. People, 141 111. 447. 31 X. E. 425; Flynn v. Fog- arty, 106 111. 2G3. Indiana. — MrCarty v. State, 162 Ind. 218, 70 X. E. 131. Imni.— Rafferty v. Buckman, 46 Iowa 195. Nebraska. — Schiek v. Sanders, 53 Neb. 664, 74 X. W. 39. South Dakota. — Garrigan v. Ken- nedy. 1!» S. 1). 11. 101 X. W. 1081 : Garrigan v. Thompson, 17 S. D. 132, 95 X. \Y. 294; Stafford v. Levinger, 16 S. D. 118. 91 X. \V. 462, L02 Am. St. Rep. 686. Compare Davis v. Justice, 31 Ohio St. 359, 27 Am. Rep. 514. This doctrine is affirmed in a lead- ing case decided by the New York Court of Appeals. Mead v. Stratton, 87 X. Y. 403. 41 Am. Rep. 386. The court said in this case: " The statute cited provides for a recovery by action for injuries to person or property, or means of support, without any re- strictions whatever. Both direct and consequential injuries are included. and it was evidently intended to create a cause of action unknown to the common law, and a new ground and right of action. Volans v. i 7 4 X. V. 526, 3d Am. Rep. 337; The injury to the means of support was one of the main grounds of the and when the party is deprived of the usual means of maintenance, which he or she was accustomed to enjoy previously, by or in consequence of the intoxication or the acts of the person intoxicated, lie action can he maintained. Id. It is evident that the Legislature intended to go in such a case far beyond any thing known to the common law, and to provide a remedy for injuries occasioned by one who was instrumental in producing, or who caused Buch intoxication. While a statute of this character should not be enlarged, it should be 550 CIVIL DAMAGE ACTS. [§ 487 right of action to a wife for loss of means of support it is suf- interpreted, where the language is clear and explicit according to its true intent and meaning, having in view the evil to be remedied and the object to be attained. The evident object was to suppress the sale and use of intoxicating liquors, and to punish those who, in any form furnish means of intoxication by making them liable for damages which might arise, which were caused by the parties who fur- nished such means. If the injury which had resulted to the deceased in consequence of his intoxication had disabled him for life, or to such an extent as to incapacitate him for labor and for earning a support for his family, it would no doubt be em- braced within the meaning and intent of the statute. That death ensued in consequence thereof furnishes much stronger ground for a claim for a loss of means of support, and a different rule in the latter case would make provision for the lesser and tempor- ary injury, while that which was greatest and most serious would be without any remedy or means of re- dress. Such could not have been the intention of the law-makers, and the statute was designed to embrace and most manifestly cover and include all in juries produced by the intoxication, and which legitimately result the same. If it is an injury which can be repaired by damages, as that aris- ing from a temporary disability, or one where death comes I ural and legitimat of the in- ication, a case is made out within the statute which entitles the injured party to recover such damages. The argument that in this ease it was not the natural and proximal of the act of the de- cant, would apply with equal force if death had not followed, and we think has no point under the peculiar circumstances of this case. There are some decisions in the Supreme Court of this State which bear upon the sub- ject. In Hayes v. Phelan, 4 Hun 733, the opinion holds that the statute gave a right of action only in cases where it lies against intoxicated per- son. This conclusion does not, how- ever, appear to have been sustained by a majority of the judges constituting the General Term, and in a note to Dubois v. Miller, 5 Hun 335, an opin- ion of James, J., is published dissent- ing from the views expressed in Hayes v. Phelan, and it is stated that Boardman, J., concurred only in the result arrived at in the decision, and only two justices were present. In Brookmire v. Monaghan, 15 Hun 16, where the complaint asked dam- ages only by reason of the death of plaintiff's husband which it was al- leged was caused by intoxication by liquor sold the deceased by the de- fendant it was held that the com- plaint did not state a cause of action under the Civil Damage Act, and it was said that the court had hereto- fore decided in Hayes v. Phelan that such damages are not recoverable under the act of 1873. The same question arose in the fourth judi- cial department in Jackson v. Brook- ins, 5 Hun 530, and it was there held that where several persons be- came intoxicated and engaged in an affray in which one is killed, his wid- ow may maintain an action against the person who sold the liquor which -ed the intoxication, to recover damages sustained by her for the death of the husband. The same doc- trine is upheld in Smith v. Reynolds, 8 Hun 12S. Tn Quain v. Russell, Id. 319, in the third depai held by a majority of the court, that § 1ST] CIVIL DAMAGE ACTS. .-.-,1 ficicnt that she was a wife a1 the time of the injury, and it La not it was not essential to 1h<> existence of the cause of action under the Civil Damage Act, againsl tin- vendor of liquors, thai an action Bhould also be maintainable against the intoxh ated person and it is sufficient if the wife has been injured in her means of sup- port through the intoxication of the husband. The case of Hayes v. Phelan is referred to, and it is said that no such principle as is claimed in the last case was decided by the court. It will thus be seen that the decisions of the Supreme Court in this State are not entirely harmonious. In the State of Illinois it is held that the action will lie when death ensues. See Schroeder v. Crawford, 94 111. 357, 34 Am. Rep. 236. Hackett v. Smelsley, 77 111. 109. The same rule is upheld in Nebraska (Roose v. Per- kins, 9 Neb. 304, 2 N. W. 715, 31 Am. Rep. 409), and in the State of Iowa Rafferty v. Buckman, 4G [owa 195. Some exceptions are made by the courls of Illinois when the person intoxicated is killed in an affray, or when death results from exposure. Shugart v. Kuan, 83 111. 56, 25 Am. Rep. 359; Schmidt v. Mitchell, 84 111. 195, 25 Am. Rep. 1 16. It is not necessary to de- • whether these decisions arc based on a sound principle, as no such question arises in the case al bar. t ses are also cited from Indiana which are claimed to be adverse to the views expressi d. See Kxach v. Beilman, 53 fnd. 517: ('oilier v. Karly. 54 Id. n.-)!) : Backes v. Dant, 55 Id. 181. In Krach v. Heilman, 53 Ind. 517. the person intoxicated was killed in an affray. The last two cases cited are somewhat analogous t'> the case at liar, hut the decision of the court is not. we think, well sup- ported in either of them. It is also held in Ohio, that under the act in that State in relation to the sale of intoxicating liquors for injury to the means of Bupporl in consequence of intoxication which caused death, no recovery of damages can !><• had. Davis v. Justice. :;i nhh, St. 359, l~ Am. Rep. 514, Kirchner v. Myers, 35 Ohio St. 85, 35 Am. Hep. We cannot concur in Buch an inter- pretation of the act in question, and for the reasons already stated are of the opinion, that if the death of the deceased was a result necessarily fol- lowing the intoxication, and was at- tributable to such intoxication, an action will lie to recover the damages arising to the means of support of the plaintiff by reason thereof." Per Miller, J. Widow a " person " -within meaning of word as used in stat- ute. — Statute givingright of to a wife or other for injury in person or prop- erty or means of support or by reason of the intoxication of any person gives a right of action to the widow- as she must be considered " a person." Brockway v. Patterson. 72 Mich. 122, 40 N. W. 192, 1 L. R. A. '■ - Sufficiency of complaint. — A complaint showing thai the intoxi- cated condition caused by liquor mi- ldly sold by the defendant's prin- cipal caused the death of the plain- tiff's husband is sufficient and an I her husband had either fallen or v. as thrown out of the 'V in which I and does not make the complaint bad because of the alternative form, it being de- clared in Buch a case that whethe he was thrown or had fallen out of the buggy could not change ' averred fact that he received in': and that they were caused by the use 552 CIVIL DAMAGE ACTS. [§ 4SS necessary that she be a wife at the time of bringing the action, 81 as the death of the husband does not terminate the right of action which a wife may have. 82 So a widow may recover for loss of sup- port resulting from the death of her husband who was killed while crossing car tracks in an intoxicated condition, the intoxica- tion being regarded as the proximate cause of the death. 83 And where the plaintiff's husband committed suicide the fact that he was sober at the time is held to be immaterial if the suicide was the result of previous intoxication from liquors sold him by de- fendant. 84 In Massachusetts, however, it has been decided that under the statute of 1879 a wife cannot recover for the death of her husband caused by his intoxication as a result of liquors fur- nished to him by another; there being no right of action for damages in that state for damages occasioned by causing the death of another. 85 And in Ohio under the act of 1870 in an action for injury to means of support in consequence of intoxication which caused the death of the intoxicated person damages resulting from the death were not allowed, the loss to means of support being terminated by the death of the husband. 86 § 488. Action by widow — death of husband continued. That a husband failed to support his wife is no defense to an of liquor illegally sold. American finding of whisky bottles on it. Ben- Surety Co. v. State ex rel. Holtman nett v. Miller's Estate (Mich. 1910), find.' A. C. 1909), 90 N. E. 99. 125 N. W. 2. Evidence of the habits of the 81. Hackett v. Smelsley, 77 111. 109. deceased is admissible in an action S3. Gardner v. Day, 95 Me. 558, by the widow, such evidence being 50 Atl. 892 ; Roose v. Perkins, 9 Neb. competent for the purpose of showing 304. 2 N. W. 715, 31 Am. Rep. 409; that he was a man in the habit of Schneider v. Hosier, 21 Ohio St. 98. getting intoxicated and that the sale 83. Schroder v. Crawford, 94 111. to him was therefore illegal. Sisson 357, 34 Am. Rep. 236 n. v. Lampert (Mich. 1910), 124 N. W. 84. Garrigan v. Kennedy, 19 S. D. 512. 11, 101 N. W. 1081. Evidence is admissible of the 85. Barrett v. Dolan, 130 Mass. condition of the body when found and 306, 39 Am. Rep. 456, followed in of other circumstances such as the Harrington v. McKillop, 132 Mass. odor of whisky on the body and the 567. 86. Kirchner v. Myers, 35 Ohio St. §§ 489,490] CIVIL DAMAGE ACTS. 553 action on the bond for his death resulting from unlawful .-ales to him, since he is under the legal obligation to support her. 87 And in estimating a wife's damages for the death of her husband her right to presenl as well as future support should be considered. 88 Where injury to the means of support of a wife is Bhown by the death of her husband an accurate account need not necessarily be given of the contributions of which the injury deprived her it being sufficient to give evidence from which the extent of the in- jury may be approximately ascertained. 89 But in an action for injury to means of support caused by the death of the husband it is proper as bearing upon the extent of the injury to show the re- marriage of the plaintiff. 90 § 489. Action by widow — husband killed by intoxicated person. In some states under the statutes in force a person injured in his or her means of support by the death of another killed by an in- toxicated person may recover damages therefor from the seller of the liquor. 91 So a widow is entitled to recover for injury to her means of support as a result of the death of her husband caused by the act of another while in an intoxicated condition and due thereto. 92 But in an action by a widow a finding for the defend- ant may be justified where even though it appears that the deceased was killed by a person while intoxicated it also appears that the deceased first assaulted the intoxicated person. 93 § 490. Action by wife— exemplary damages. In an action by a wife exemplary damages may in a proper case 85, 35 Am. Rep. 50S. following Davis 91. Munz v. People, 90 111. App. v. Justice, 31 Ohio SI. 359. 047: Brockway v. Patterson. 72 Midi. 87. Knott v. Peterson, 125 Iowa 122, 40 X. \Y. 192, 1 L. P. A. 708; 404, 101 N. W. 173. Jackson v. Brookins, 5 Hun (X. Y.) 88. Rafferty v. Bucknian, 40 Iowa 530. 195. M. Scotl v. Cliope. 33 Neb. 41. 49 89. Lafler v. Fisher, 121 Mich. 00, X. W. 940. 79 X. W. 934. !,:: - Reisch v. People, 229 111. 574, »0. Sharpley v. Brown, 43 Hun (X. 82 X. E. 321. Y.) 374. 554 CIVIL DAMAGE ACTS. [§ 491 be awarded. 94 So the fact that notice had been given by a wife to a liquor seller not to furnish liquors to her husband is an element to be considered in estimating such damages as it has a tendency to show a wilful disregard of the wife's rights, 95 and may be con- sidered upon the question of exemplary damages. 96 So evidence that the defendant sold intoxicating liquors to a person who was in the habit of being intoxicated, after notice from the wife not to sell, and that he sold intoxicating liquors to such person while in a state of intoxication are grounds for exemplary damages. 97 And it is error to exclude the question of exemplary damages from the jury where there is some evidence tending to show that the sales were made against the wife's remonstrances. 98 So where it is shown that the defendant sold liquor to a man against the repeated protests of his wife and under circumstances advising him of the impoverished condition of the family punitive damages are prop- erly awarded. 99 And upon the question of exemplary damages evidence is properly admissible of the fact that sales were made by the defendant to the husband after the action by her was com- menced. 1 § 491. Means of support of mother — sale to son. A mother who is a widow is an " aggrieved " party where she is injured by the sale of liquors to her adult son and thus deprived of her means of support ; though he is not legally bound to support »4. Thill v. Pohlman, 70 Iowa 038, Kirschgessner, 73 Mich. 270, 41 N. W. 41 X. W. 385; Miller v. Gleason, 18 488. Ohio C. C. 374. »«• Siegle v. Rush, 173 111. 559, 50 Actual damages must be X. E. 1008. proved. — Meidel v. Anthis, 71 111. 97 » Joekers v. Bergman, 29 Kan. 241. 109, 44 Am. Rep. 025. In South Dakota it has been de- »8« Gansley v. Terkins, 30 Mich, cided that a widow is not entitled to 492. iplary damages. Garrigan v. J>!> - ITanewacker v. Ferman, 47 111. Thompson, 17 S. D. 132, 95 X. W. 204. App. 17. See also Wolfe v. Johnson, 95. Rouse v. Melsheimer, 82 Mich. 152 111. 280, 38 X. E. 886. 172, 40 X. W. 372; Larzelere v. 1. Bean v. Green, 33 Ohio St. 444. § 492] CIVIL DAMAGE ACTS. In p. 2 And plaintiff in an action for selling intoxicating liquore to her son may show her situation and condition, her dependence on him, the amount earned by him before he became addicted to the use of liquor, bis failure to obtain employment afterwards, if traceable to his drinking habit, and thai he was last seen upon the street in a state of intoxication during the time defendanl i- claimed to have .sold him liquor. 3 § 492. Action by mother in behalf of her and children — joint acticn. A married woman and her minor children constituting i family may join in an action for damages to their means of sup- port caused by the intoxication of the husband and father. 4 And where a wife sues in behalf of herself and her minor children she may recover compensation for both her and their loss. 5 As tend- ing to show the injury to the means of support of a wife and chil- dren it is proper to admit evidence as to the amount necessary to support the family in ordinary comfortable circumstances, suit- able for people in their condition. 6 And in a suit by a married woman in behalf of herself and minor children under the Ne- braska statute for damages due to the incapacitation of the hus- 2. Coughtry v. Eaupt, 47 Tex. Washington giving a right of ac- Civ. App. 452> 105 S. W. 516. See tion to a widow and children ii has also Mci lay v. Worrall, is Neb. 45, boon decided thai they cannot join. 24 X. \\ . 129. Delfel v. Hanson, 2 Wash. 194, 26 :?. Weiser v. Welch, 112 Mich. 134, Pac. 220. 7n X. W. 138, citing Horn v. Smith, A mother cannot compromise 77 ill. 381. an action brought l>y her in her own -*. Helmuth v. Bell, 150 111. 263, 37 behalf and that of her minor children X. E. 230; Wall v. State, 10 End. bo as to affect the rights of the 1 App. 530, 38 X. E. 190; Jones v. without the authority and approval of Bates, 26 Neb. 693, 42 X. \Y. 751, 4 the court. Zimmerman v. Smiley, L. R. A. 195; Wardell v. McConnell, 62 Neb. 204, 86 X. W. 1059. 23 Nob. 152, ."in X. W. 278.; Kerkow •"• Rosecrants v. Shoemaker, 60 v. Bauer, 15 Neb. 150, 18 X. \V. 27: Mich. 4, 26 X. W. 794. Roose v. Perkins, 9 Neb. 304, 2 X'. 6. Warrick v. Round-. 17 Neb. 411, W. 715, 31 Am. Rep. 409. 22 X. \Y. Under a code provision in 556 CIVIL DAMAGE ACTS. [§ 493 band and father, the gist of the action is the loss of means of support and not any personal injuries he may have suffered as a r suit of the intoxication. 7 In such an action by a widow in be- half of herself and her minor child the measure of damages is the present value of the sum the deceased would probably have con- tributed to the support of his wife during the period of their joint expectancy of life and the amount he would probably have con- tributed to the support of the child during her dependency, the same being less than the deceased's expectancy. 8 And in an action by a widow and children evidence that the deceased in his life- time accumulated property which, upon his death, went to the plaintiffs, should not be considered in mitigation of damages but should rather go to enhance them. 9 The words " all damages " in such an act, are held to include the loss of means of support of a wife and the children of the husband who by reason of liquors furnished him becomes unable — either partially or totally — to labor. 10 Under a statute in Kansas it is decided that children injured in their means of support by reason of the intoxication of their father cannot maintain a joint action. 11 § 493. Means of support — action by children. Under a statute giving a right of action to children or to persons generally who are injured in their means of support, minor chil- dren who are deprived of their support by the intoxication of their father rendering him incapable of providing for them may recover 7. Nelson v. Nevels, 79 Neb. 699, tender age as to render them entirely 113 X. W. 1H). dependent upon their parents for sup- s' Young v. Beveridge, 81 Neb. port. Kerkow v. Bauer, 15 Neb. 150, 180. 115 N. W. 700. 18 N. W. 27. In an action by the widow and »• Houston v. Gran, 38 Neb. 687, children it is competent to prove the 57 N. W. 403. physical condition and health of the !<>• Gran v. Houston, 45 Neb. 813, deceased, his habits of industry, his 64 N. W. 245. avocation, the monthly or annual pro- 11. Durein v. Pontious, 34 Kan. duct of the same, and whether any 353. and all of the children are of such § 494] civil I).\.ma<;k acts. 557 therefor. 12 In an action by minor children to recover for loss due to the accidental killing of their father while intoxicated it is proper to show that he was a man of industrious habits when sober and what he contributed to the support of the family. 13 And the fact that there may have been ;i recovery by the widow i- no bar to an action by the children as the right of action of a widow and the children arc separate and distinct and in no wise depend- ent upon each other. 1 ' And the right of action so given to a child is held to exist in favor of a child who was born after the death of his father such death being due to intoxication. 15 Again under a statute giving a right of action to a child or any other persons injured in his person or property the fact that a child may be illegitimate does not affect the right to recover, and though the statute should not use the term " or any other person " there still might be a recovery, where the father of the child is chargeable by law with its support. 16 And in Massachusetts it is decided that though a son may be an adult yet he is nevertheless a child within the meaning of a statute giving such a right of action to a child after notice has been given. 17 § 494. Action by husband. A husband injured in consequence of the intoxication of his wife will be regarded as included in a classification of " other persons " as used in a statute. 18 And a wife may be a means of 12. Bloedel v. Zimmerman, 41 Neb. Widow and children may sue jointly 695, 60 X. W. 6. or severally. Kerkow v. Bauer, 15 Though the complaint alleges ^. , j g0 ^ y ^- gy a total loss of support in an ac- . . „ * . ,,, . « 15. Quinlen r. Welch, 69 Hun N. tion by minor children to recover for the death of their fattier, there may Yd 584, 23 X. V. Supp. 963. be a recovery for a partial Loss of 16. Goulding v. Phillips. 124 Iowa support. Buck v. Maddock, ItiT 111. 4;),;, \qq x. \V. 516. 219, 47 X. E. 208. 17 . T lor v Carrol i U5 M .,_ .,-.. IK. Buck v. Madock, 167 111. 210. 47N.E. 208. U V '' "' i». Stecher v. People. 217 111. 348, 18 ' Landram v. Flannigan, 60 Kan. 75 N. E. 501. 436, 56 Pac. 753. 55S CIVIL DAMAGE ACTS. [§§ 495,496 support to her husband and whether such relationship exists and how far the means of support may be injured are questions of fact to be determined by the jury upon proper instructions from the court. 19 And it has been decided that a husband has a cause of action for the loss of society of his wife and for mental anguish where she was killed by a person while intoxicated. 20 But where by statute of descent and distribution a husband does not inherit his wife's personal estate and is not next of kin he cannot maintain an action to recover for his wife's death under a statute which gives such a right to " next of kin." 21 § 495. Death of intoxicated person — no recovery by personal representatives. Though a person may have died from the effect of liquor bought and consumed by him, his personal representative has no right of action against the seller for such death. 22 And where a statute gives a right to " next of kin " and a husband is not under the statute included in such classification he cannot recover as execu- tor of his wife's estate for her death unless it appear that there are next of kin entitled to the amount to be recovered. 23 § 496. Action by intoxicated person. In some states a right of action is given to an intoxicated per- son to recover for an injury sustained by him as a result of his intoxication. So in Pennsylvania by an act passed in 1854 a right of action was given to the injured person himself to recover for damages caused by exposure as the result of a sale of liquor to him, he being either intoxicated or a person of known intem- perate habits ; the principle of volenti non fit injuria being held u». Moran v. Goodwin, 130 Mass. 22. Couchman v. Prathor, 1G2 Ind. 158, 39 Am. Rep. 443. 250. 70 N. E. 240; Bissell v. Starzin- 20. Fortier v. Moore, 07 N. H. 400, ger, 112 Iowa 2GG, 83 N. W. 1005. 36 Atl. 300. 23. Warren v. Englehart, 13 Neb. 21. Warren v. Englehart, 13 Neb. 283, 13 N. W. 401. 283, 13 N. W. 401. g 197] CIVIL DAMAGE A< I 3. 559 nol to be applicable. 24 In an action founded on such a statute an allegation of the purchase by plaintiff of liquors and that in consequence thereof he became unconscious and that while in such state his legs wen- frozen as a result of which they had to be amputat< d was held to state facts sufficient to constitute a can-'- of action.-"' And the act of the deceased person in drinking liquor is not contributory negligence precluding a recovery in favor of his estate it appearing thai while intoxicated the defendant ex- pelled him from the saloon thereby causing his death from ex- posure. 26 But a statute giving a right of action to certain desig- nated persons " or other persons " for an injury done by reason of the intoxication of any person gives no right of action to the in- toxicated person himself against the dealer for money stolen from him while drunk. 27 § 497. Assault by intoxicated person. A seller of liquor is in many states under the statutes in force liable for an assault committed by an intoxicated person upon another where such assault is committed as a result of the sale of such liquor. 28 But where an assault was committed by a minor in an action against persons with whom he had drank and become intoxicated, for the damages resulting from such assault the action being based on the ground that the defendants had paid 24. Littell v. Young, 5 Pa. Super. money and while in that condition it ct. 205. was forcibly taken from him without 25. Buckmaster v. McElroy, 20 Neb. his consent he could not maintain an 557, 31 N. W. 76, ">T Am. Rep. 843. action against the saloon keeper and 86. Weynine v. Wolf, 52 Iowa 533, the sureties on his bond to recover 3 N. W. 541. the same, the sale of the liquor not 27. Brooks v. Cook, tl Mich. 617, being regarded as the proximate cause 7 X. \Y. 216, 38 Am. Rep. 282. See of the injury. also Gage v. Harvey, 66 Ark. 68, 88. King v. Haley, 86 111. 106, 29 48 S. W. 898, 74 Am. St. Rep. 70, 43 Am. Rep. it: English v. Beard, 51 L. R. A. 143, holding that where a Ind. 489; Bodge v. Hughes, 53 N. H. person became intoxicated and thereby til4. incapacitated to take care of his 56 q CIVIL DAMAGE ACTS. [§ 497 for and furnished such liquor to the minor it was held that the damages were too remote it appearing that he was not incited thereto by the defendants and that the assault was his own volun- tary act. 29 29. Swinfin v. Lowry, 37 Minn. liquors with the defendants, or at 345, 34 N. W. 22, it being declared their expense, as to be considered the that the assault was not so related to natural and proximate result, the fact that he drank intoxicating SEARCH AND SEIZURE LAWS. 50] CHAPTER XX. SEARCH AND SEIZURE LAWS. Section 498. Search and seizure laws generally — Constitutionally of generally. 499. Not a taking of private property for public use. 500. Not invalid as denying right of trial by jury. 501. Statutes as to generally. 502. Particulars statutes construed. 503. Limitations on powers. 504. Limitations on power and exercise of continued. 505. Liquor which may be seized generally. 50G. Liquors in hands of bailee. 507. Seizure of liquors in transitu — of property used in transporting. 508. Liquors shipped into prohibited districts — seizure in hands of carrier. 509. Liquors shipped in prohibited to territory — contract of sale com- pleted there. 510. Liquor shipped from another state — Iowa. 511. Liquor shipped from another state — Maine. 512. Liquor shipped from another state — South Carolina. 513. Liquor shipped from another state — Vermont. 514. Liquor shipped from another state — United States. 515. Liquor shipped from another state — conclusion. 516. Seizure of property in connection with liquor-. 517. Complain! generally. 518. Sworn complaint. 519. Warrant generally. 520. Warrant and complaint in one instrument. 521. Variance between complaint and warrant. 522. Who max complain. 523. Alleging probable i .v.! t. Allegations as to liquors, kinds and quantities. 525. Allegations as to intent — keeping for unlawful sale. 526. Allegations as to owner or keeper. .V27. Description of place to be searched. SEARCH AND SEIZURE LAWS. [§ 493 Section 52S. Description of place to be searched — continued. 529. Description of place to be searched — rules illustrated. 530. Time of service of warrant. 531. Search and seizure without warrant — generally. 532. Same subject — allegations in complaint and warrant. 533. As to arrest of person having liquors in possession. 534. Arrest without warrant. 535. Effect of seizure of more liquors than authorized. 536. Notice of seizure. 537. Claimants — effect of appearance — waiver of defects. 538. Power and liability of officer serving — generally. 539. Power of officer — as to place of search. 540. Liability of officer — concluded. 541. Duty of officer as to keeping of liquors. 542. Acts of officer de facto. 543. Officers' returns. 544. Actions to recover liquor seized — replevin. 545. Nature of proceedings for forfeiture — proceedings in rem. 54G. Same subject — whether civil or criminal. 547. Proceedings for forfeiture and punishment of offender separate. 548. No defense that intent was that of agent of owner. 549. Finding as presumptive evidence of unlawful keeping — statutes. 550. Evidence generally. 551. Proceedings for forfeiture — judgment for. 552. Right to return of liquors seized. § 498. Search and seizure laws generally — constitutionalty of generally. The legislature may declare the possession of certain articles of property, either absolutely or in particular places and under par- ticular circumstances, to he unlawful because they would be in- jurious, dangerous or noxious. And it may provide for the seizure and confiscation or destruction thereof by due process of law. 1 So it is said : " Certain articles which are treated as property, while used for lawful purposes, may be subjects of forfeiture and de- struction, under proper statutory provisions, if their use is deemed pernicious to the best interests of the community. And when !• Fisher v. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381. § 498] SEARCH AND SEIZURE LAWS. :,i;;; articles are attempted to be used for unlawful purposes, or in an unlawful manner, and the attempts are so concealed, thai ordim diligence fails to make such discovery as to enable the law to -I'-elare the forfeiture, statutes, authorizing searches and seizures, have been held legitimate." 2 So although there is a well recognized principle of right of property in intoxicating liquors and thai they are not nullum in se and that their use is uo1 prohibited by law to tin citizens of the state yet these principles are Bubjecl to the quali- fication that when kept and intended for unlawful use they fall under the ban of the law and become subject to seizure and confis- cation by snch methods as are provided by law in conformity with the constitution. 3 Statutes of this character have as a general rule been held to be constitutional. 3 * " The police power of the state concededly extends to the search, seizure, and destruction of prop- erty which is either the subject of crime or the means of perpetrat- ing it. Now when intoxicating liquors are kept for sale in a pro- hibition district, they are, with all implements to facilitate their sale, the subject of crime or the means for committing it." 4 So a statute providing for the abatement of nuisances by "seizing and destroying the liquor " in the place though properly adjudged to be -. Gray v. Kimball, 42 Mc>. 299, Intoxicating Liquors, 172 Mass. 311, 3(17. per Tenney, C. J. 52 X. E. 389; Allen v. Staples, 6 Gray 3. Stat.- v. O'Neil, 58 Vt. 140, 2 (Mass.) 191. Ail. 586, 56 Am. Rep. 557, per Boyce, Minnesota. — State v. Stoffels, 89 C. .1. Minn. 205, 94 \. W. 675. 3a. Arkansas. — Ferguson v. Josey, Nebraska. — Sothman v. State, 60 70 Ark. 94, 66 S. W. 345. Neb. 302, 92 X. W. 303. Illinois. — Sf.' Sullivan v. City of Rhode Island. — Liquors of Borgan, Oneida, 61 111. 242. 16 R. I. 542. Connecticut. — State v. Wheeler, 2.~> Vermont. State v. Intoxicating Li- Conn. 200. quor, (Vt. 1909), 7:: Ail. 586; Gill v. Iowa.- McLane v. Bonn, 70 Iowa Parker, .".1 Vt. till': Lincoln v. 752, 30 X. W. 748; Santo \. State, 2 Smith, 2:: Vt. 328. Iowa 165, 63 Am. Dec. 187. Ordinance invalid as in viola- Maine. — State v. LeClair, 86 Me. tion of constitutional rights - e Sul- 522, 30 All. 7: State v. Miller, -is livan v. City of Oneida, 61 111. 242. Me. 570. ■«• State v. Stoffels, 89 Minn. 205, Massachusetts.— Commonwealth v. 209, 94 X. \V. 675, per start . C •'. 564 SEARCH AND SEIZURE LAWS. [§ 499 employed in cases pending under a prior statute providing for the abatement of such nuisance but containing no provision as to the method of abatement is not subject to the objection that it is an ex post facto law, it being declared that such an action is not criminal in its character and that the acts done in abating nuisances are not done in punishment of crimes. 5 And the fact that a statute pro- vides for search and seizure of liquors kept for sale in prohibition districts does not render it class or special legislation since, while the classification includes all localities and districts wherein the issuance of licenses is or may be prohibited by law, it applies equally to all persons and places within such districts. 6 § 499. Not a taking of private property for public use. Such a statute is not a violation of a constitutional provision that private property shall not be taken for public use without compensation therefor. 7 This provision of the constitution as to the taking of private property for public use was not intended to apply to forfeiture and confiscation. 8 So in an early case in Connecticut it is said : " Again it is claimed that the statute violates another clause in the constitution, which says that ' the private property of no person shall be taken for public use with- out compensation therefor ' ; that it authorizes the taking of pri- vate property for the benefit of the town. The same objection might, with the same propriety, be urged against almost every ■""•• McLane v. Bonn, 70 Iowa 752, 8. State v. Snow, 3 R. I. 04, 30 X. W. 478. wherein it was said: "This objection 6. State v. StofTels, 89 Minn. 205, supposes that the property to be ad- !>4 X. W. 075. judged forfeited is in the sense of 7. State v. P>rennan's Liquors, 25 that section taken for public use. Tt Conn. 278. See also Kirkland v. is, however, simply adjudged forfeit State. 72 Ark. 171, 78 S. W. 770, 105 for the violation of the law, and to Am. St. Rep. 25. tliis extent is in the nature of a pen- Where liquors are kept for sale in alty inflicted upon tiie owner. This violation of law they are not within provision of the constitution was the protection <>f the law and have no never supposed to apply 1o forfeiture value. Oviatt v. pond, 2!t Conn. 479. ami confiscation." Per Brayton, J. g - ||() | SEARCH AND SEIZURE LAWS. 565 penal statute, as the law requires al] fines, forfeitures and penalties, unless otherwise expressly disposed of, to be paid into either the state or town treasury. Thus a person convicted of the crime oi drunkenness, is subject to a fine payable into the town treasury. In one sense it may be said, his money, if the fine is paid, is taken for public use but no1 within the meaning of that clause of the constitution. The fine is imposed not because the public want his money, but as a punishment for his offense, and the disposition of it does not affect the validity of the law subjecting him to the punishment. So in the case under consideration, the law imposes the forfeiture of the liquors, not for the benefit of the town, but as a punishment for keeping them for an unlawful purpose. For- feitures have frequently been imposed by law of Congress as well as by other laws of this state, none of which have ever been ad- judged unconstitutional." 9 § 500. Not invalid as denying right of trial by jury. Such a provision is held not invalid as denying a right of trial by jury. 10 A constitutional provision that " the right of trial by jury shall remain inviolate" is construed as applying only to those cases at common law in which the issues of fact were triable by a jury and not to require a jury trial in proceedings under search and seizure laws. 11 So in a recent case in Vermont it is said that it is settled in that state that such proceedings are not prosecutions for criminal offenses within the meaning of the con- stitutional provision giving a right to a trial by jury in such prose- cutions but are only proceeding /'// r< m to fix the status of the property and therefore essentially civil and not criminal. 12 So in n. State v. TSrennan's Liquors, 25 ing liquor to be outlawed by statute. Conn. 278,280, 287. Per Waite, C. J. "• Kirklan.l v. State, 72 Ark. 171. io. Kirklan.l v. state. 72 Ark. 171. 78 S. \V. 770, 105 Am. St Rep. 21. 78 S. W. 770. 105 Am. St. Rep. 21: '-• State v. Intoxicating Liquors Sothman v. State, 66 Neb. 302, 92 (Vt. 1909), 7:; Ail. :.st;. citing state N. W. 303. See state v. [ntoxicating v. [ntoxicting Liquor, 55 Yt. 82. Liquor, 55 Yt. s^. holding intoxicat- 566 SEARCH AND SEIZURE LAWS. r^ 59] an early case in Connecticut it is decided that a provision of a statute that a justice if he shall find that the liquor was kept in violation of the act, shall render judgment that the liquor and the vessels which contained it shall be forfeited is not, by giving a justice jurisdiction to an unlimited amount repugnant to the constitution of the state as impairing the right of trial by jury, the right of appeal being allowed to the claimant in every case. 13 And it is declared in a late case in Indiana that due process of law does not mean a trial by jury but only requires that provision shall be made for notice in some form and an opportunity to be heard be- fore some tribunal, not necessarily an" organized court or before a jury. 14 Again it has been decided that a statutory provision " that any person on whose premises or in whose custody any such liquor may be found under warrant of this act shall be entitled to his day in court before said property shall be destroyed " did not contem- plate a trial by jury in a proceeding under the act. 15 And prose- cutions of this character are not actions for the recovery of money or of specific real or personal property within the meaning of a code provision as to trial by jury in such cases. 16 § 501. Statutes as to generally Such a statute should give an opportunity to the party accused to defend his property, provide for notice to him of the seizure and for some means of informing him when, where and before whom the search warrant is returned. 17 The search, seizure and confisca- tion provisions of such a statute will generally, in the absence of 13. State v. Breman's Liquors, 25 Kelley v. Pittsburgh, 104 U. S. 78, Conn. 278. 20 L. Ed. 058; Weimer v. Bunbury, 14. Campbell v. State, (Ind. S. C. 30 Mich. 20. 1909), 87 N. E. 212, citing Cleveland 15. Kirkland v. State, 72 Ark. 171, R. Co. v. Backus, 133 Ind. 513, 33 N. 78 S. W. 770. E. 421, 18 L. R. A. 729; Hovey v. El- 1«. Sothnian v. State, GO Neb. 302, liott, 107 U. S. 409, 17 Sup. Ct. 841, 92 N. W. 303. 42 L. Ed. 215; Springer v. United 17. Hibbard v. People, 4 Mich. 125. States, 102 U. S. 580, 20 L. Ed. 253; 126. § 502] SEARCH AND SEIZURE LAWS. 567 anything therein to the contrary, be regarded as aimed al the present condition of the liquors and the presenl intenl of the keeper and not that of the past. 18 And where under the statute in force a search an< I seizure process has been instituted it will no1 be affected by a statute subsequently passed accident ally repealing a part of the statute as to the unlawful keeping "1" liq u prohibited, there still being a statute in force as to unlawful selling and a constitutional provision prohibiting the sale and keepi] § 502. Particular statutes construed. It is no valid objection to the constitutionality of an act that a defendant, before appeal is allowed, is required to give bond to prosecute his appeal to effect, in such amount as the justice may order, and that the justice has power to prevent an appeal by requiring a bond of an exorbitant amount, inasmuch as it is not to be supposed that any abuse of authority is to be practiced, especially where the bond is required only to secure the payment of costs. 20 And a statute providing for an appeal only if taken immediately upon judgment of forfeiture and to be accompanied by a recognizance with sureties in a specified sum to prosecute the appeal has been held not to be unconstitutional because no time was given to procure sureties and perfect the recognizance or because the amount of the recognizance was fixed by the legis- lature, it not being clearly exorbitant. 21 But a statute which pro- vides for the destruction of the property seized and the punish- ment of its owner or keeper without his being duly charged with any offense, or being summoned, (unless known to the officer) to appear before the magistrate, and which gives him no opportunity to defend and meet the witnesses againsl him face to face and con- is. Stato v. Intoxicating Liquors, -°- State v. Brennan's Liquors, 25 85 Me. 304, 27 Atl. 178, citing State Conn. 278. v. Hawley, 65 Me. 100; Slat,- v. ai< fu ?v TW L - nf McSoley Dunphy, 7!' Me. 104. 8 Atl. 344. -« X ^ , ii r>o >r i™ 15 R. I. 008. 10 Atl. (.>.•)!>. to. State v. Dowdell, 98 Me. 460, 57 Atl. 840. 568 SEARCH AND SEIZURE LAWS. [§ 503 tains no provisions for legal proof and trial of the offence of keep- ing the liquors with intent to sell has been held unconstitutional. 22 And a constitutional provision against unreasonable searches and seizures is violated by a statute which requires neither the name of any person, keeping or depositing the liquors with intent to sell, to be named in the complaint or the search warrant for the liquors and which does not limit the authority of the officers to the liquors described in the complaint, nor to those intended for sale but which directs him to seize any liquors found in the place described in the complaint. 23 § 503. Limitations on powers. While the right to enact statutes of this character has been generally recognized, yet such power must be exercised in con- formity to the provisions of the constitution and the rights of the individual secured thereby in respect to his person and property and in regard to unreasonable searches and seizures. The legis- lature in enacting measures of this character must act, having in view the limitations imposed by the constitution. 24 So it has been said that, " The exercise of this power must be properly guarded, that abuses may be prevented, and that a citizen shall not be de- prived of his property, without having an accusation against him, setting out the value and charge thereof, but by the judgment of 22. Fisher v. McGirr, 1 Gray (Mass.) 1, 01 Am. Dec. 381. 23. Fisher v. McGirr, 1 Gray (Mass.) 1: 01 Am. Dec. 381. 24. Dupree v. State, (Tex. S. C. 1909), 119 S. W. 301. An ordinance which attempted to prohibit the keeping of any in- toxicating liquors or beverages in any Louse, building or place where people resort, public or private, for lawful or unlawful purposes, and then pro- vided for the seizure and confisca- tion of such liquors and for the ar- rest of any and all persons suspected of violating such ordinance with or without a warrant was held to vio- late a provision of the bill of rights securing the people in their persons, houses, papers and possessions from imreasonable searches or seizures and providing that no warrant shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirm- ation. City of Bessemer v. Eidge (Ala. S. C. 1909), 50 So. 270. §§ 504,505] SEARCH AND SEIZURE LAWS. 539 his peers, or the law of the Land; and he shall be secure in hie person, houses, papers and possessions, from unreasonable searches ami seizures." 25 And such provisions have always been upheld where they have observed the guaranteed rights of persons and property in providing notices of the seizure of the property, the means by which the owner is to be informed, when and where, and before whom the warranl is to 1"' returned and have afforded him an opportunity to defend his property. 20 § 504. Limitations on power and exercise of continued. "Where the constitution of a state provides for searches and seizures only upon a warrant, the legislature cannot only au- thorize a search and seizure in accordance therewith. 27 So where the constitution prohibits the issuance of warrants of search or seizure of persons or property, except on a sworn showing and which is construed as meaning that it must be of facts on personal knowledge such as would establish the legal probability of the cause of complaint, the legislature has no power to provide for searches and seizures without warrant. 28 And such a proceeding must be instituted in accordance with the terms of the statute and before the magistrate designated thereby. 29 And where the statute provides only for the seizure of liquors unlawfully kept in any " place," there is no authorization for the seizure of liquors from the person. 30 § 505. Liquor which may be seized generally. The object of these statutes being t<> prevent the unlawful traffic, it may be stated generally that subject to the terms of the 25. Gray v. Kimball, 42 Me. 299, Haug), 68 Midi. 549, :"!71 X. \Y. 21. .■'.07. Per Tenney, < '. F. -'!.. Bolberg Mercantile Co. v. State 20. Slate v. McManus, 65 Kan. (Miss. 1909), is So. 622. 720, 70 Pae. 700. :: "- State v. Grames, 68 Me. lis. 27. Bound v. South Carolina Ry. holding thai there could l»' no seizure Co., ">7 Fed. 485. of intoxicating liquors concealed upon 28. Robison v. Miner 1 People v. the person of a traveling rum-seller. 570 SEARCH AND SEIZURE LAWS. [§ 505 statute and the allegations of the complaint and warrant, all liquor which is kept or deposited for such purpose may be seized. So in- toxicating liquors purchased by municipal officers, without au- thority and in contravention of the statute, are liable to seizure and forfeiture. - ' 51 And where the statute requires that the casks or vessels containing liquor shall be conspicuously marked with the name of the town or its agent, they are, in an early case in Maine, held to be subject to seizure where they are not so marked even though they belong to the town. 32 But in a recent case in Maine it is decided that intoxicating liquors properly purchased for a city or town agency, and in the possession of a duly appointed and qualified town agent, which have been taken by virtue of a search and seizure process, and libeled, if not intended for sale in viola- tion of law, are not forfeitable, although the casks and vessels containing them are not marked in accordance with the provisions of the statutes. 33 And it was also decided in this case that liquors in casks marked with the name of the municipality owning them and its agent, as required by law are not subject to seizure and for- feiture even though intended for sale in the state in violation of the law, they being protected by such marking. 34 Where liquors are intended to be transported to a place within a state which is United States territory, they are not subject to seizure under the state laws which only have reference to unlawful sales in state territory. 35 And although an officer has no power to seize liquors in excess of his authority, yet a seizure of intoxicating liquors is not rendered illegal and void as to all the liquors by the fact that some liquor was seized that was not intoxicating. 36 31. State v. Belfast, 68 Me. 187, seizure plainly and conspicuously holding that intoxicating liquors, pur- marked with the name of such city, chased by the municipal plticer.s of a town or plantation, and of its agent city, town or plantation, and kept by as required by statute, the town agent for sale are liable to 33 - Androscoggin Railroad Co. v. seizure and forfeiture, if the casks Richards, 41 Me. 233. and vessels in which the same are 33. State v. Intoxicating Liquors contained are not at the time of and Vessels, 101 Me. 161, 63 Atl. 666. §§ 506,507] 3EARCH AND SEIZURE L.v. 571 § 506. Liquors in hands of bailee. Intoxicating liquors in the pog essiou of a warehouseman, but inteii< !•-« 1 by their owner for unlawful sale, are subject to forfeil and the lien of the warehouseman La held to be qo bar thi even though he had uo intention to violate the law. 37 And in Massachusetts it has been decided that liquors kepi for sale by a bailee in fraud of their owner, who is innocent of the illegal purpose of the keeper may be seized and forfeited as a nuisance. 38 But in Maine it has been decided that the disposition to be made of liquors libeled, as kept for unlawful sale, must be decided by the determination of the jury as to the intention, in this respect, of the person who owns them, or who has authority from the owner to sell them and a design on the part of one who is a mere bailee of the owner, without authority from him to make sales, illegally to sell such liquors, is held not to work a forfeiture. 39 § 507. Seizure of liquors in transitu — of property used in trans- porting. Where the statutes authorize a seizure of liquors in a desig- nated place and also in transitu and liquors are seized from a wagon while a person is traveling on the public way, the prosecu- tion should be under the latter statute. 40 In some jurisdictions an officer may not only seize the liquors but may also seize the vehicle in which they are being carried. Under such a statute where an officer seized liquors and the horse and wagon used in transporting it, it was decided, in an action by the owner for such taking, that the defendant was bound to show either that the liquors contained in the wagon were actually held for some illegal 34. State v. Intoxicating Liquors ST. State v. [ntoxicating Liquors, and Vessels. 101 Me. ltll. 03 \tl. 666. 50 Me. 506. 88. Commonwealth v. Certain In- toxicating Liquors, 107 Mass. 396. 89. State v. [ntoxicating Liquors. 36. Commonwealth v. Intoxicating 53 \\ r i_>i 35. state v. Intoxicating Liquors, 78 Me. 401, 6 Atl. 4. Liquor-. 113 Mass. 13. 40. state v. Roach, 7-1 Me. 562. 572 SEARCH AND SEIZURE LAWS. [§§ 508,509 purpose, or that he was at the time of the seizure of the property able to ohtaiu reasonable proof that the plaintiff or his servant was keeping or transporting the liquors in violation of the statute. 41 And the fact of the acquittal of one accused of illegally transport- ing contraband liquor is a circumstance to be considered upon the question whether the property used in transporting such liquors should be confiscated, the statute allowing such confiscation in a proper case. 42 § 508. Liquors shipped into prohibited districts— seizure in hands of carrier. It is within the power of the legislature to provide for the seizure and forfeiture of liquors in the hands of a common carrier for transportation into no-license cities and towns which are intended for delivery contrary to law. 43 And where a carrier is sued by a consignor for the value of liquor shipped to a prohibited district to be sold contrary to law, it is a good defense that the liquor was seized and destroyed by an officer acting under the statute, as the carrier could not lawfully have resisted the officer acting under a legal warrant as authorized by law and both the consignor and consignee having been notified of such seizure it was their right to appear and show cause why the liquor should not be forfeited. 44 § 509. Liquors shipped into prohibited territory — contract of sale completed there. It is a violation of law which will authorize a seizure and for- feiture to ship liquors into a no-license town under an agreement 41. Kent v. Willey, 11 Gray rier to be carried to a consignee, that i Mass i . 368. is, a delivery to the consignee for him- »-• Dobbins v. Gaines, 52 S. C. self or as agent for another, though 176, 20 S. E. 401. the existence of any such agency has 43. Commonwealth v. Intoxicating never been disclosed to the vendors. Liquors. 172 Mass. 311, 52 N. E. 380. State v. Intoxicating Liquors, 63 Me. It is a question of fact for the 121. jury whether or not, when goods 44. St. Louis Southwestern Ry. Co. have been entrusted to a common car- v. Gans, 69 Ark. 252, 62 S. W. 738. § 510] SEARCH AND SEIZURE LAWS. 573 that they are to remain the property of the consignor but that the consignee make take a certain quantity at a time and pay for such quantity, as he takes it. In such a case there i- a continual offering for sale, completed by the act of the consignee in taking the quantity mentioned and therefore the contract and delivery become complete in the no-license town and the sale is contrary to law. 48 § 510. Liquor shipped from another state — Iowa. In Iowa it has been decided that intoxicating liquors imported into that state by express and held by the express company as agent of the consignor, to be delivered to the consignee upon the payment of the purchase price, are subject to be seized and de- stroyed in a proceeding against the liquors. 4 ' 1 And subsequently in this state where liquors were shipped from without the Btate and the carrier kept them in its warehouse from six to fifteen days and the defendant, a notorious saloon keeper, was accustomed to take them from the warehouse, one package ar a time, as he wanted it for unlawful sale in his saloon, paying the freight on each pack- age as it was taken away, and under a search warrant .-Mine of the liquor was seized while in the carrier's possession, it was decided in a proceeding to condemn the same that by so holding the liquors the railway company ceased to be a carrier and became a ware- houseman and was not entitled to protection under tin • interstate commerce clause of the United States Constitution and that the carrier was aiding the defendant in his violation of the law and could therefore make no valid claim that it had a lien for unpaid freight. 47 And in a later case in the same state it is determined 45. in re Liquors of Young, 15 R. property, or the uses to which it is to I. 243. 3 Atl. •'". 1»' ]>ut. and that where the company 46. State v. United States Express voluntarily appears in the proc 1- Co., 70 Town. -271, :>o X. W. 568, hold- ing and claims the liquors, the cost ing also that it is wholly immaterial may properly 1m> taxed againsl it. whether the officers of the express *~- State v. Creeden, 7s Iowa, 556, company know the character of the 4:: X. \V. 673, 7 L. R. A. 295. The 574 SEARCH AND SEIZURE LAWS. [§ 511 that where liquor is shipped C.O.D. from without the state to be delivered on payment of the purchase price the carrier becomes the agent of the consignor for effecting an illegal sale within the and that such liquors are subject to seizure. 48 § 511. Liquor shipped from another state — Maine. Goods delivered in pursuance of a C.O.D. order to a carrier in one state to be delivered to the purchaser in another state are held to become the property of the purchaser upon such delivery to the carrier, the latter being regarded as the agent of such purchaser. 49 So where intoxicating liquors were delivered to an express com- pany in Kentucky and transported to Maine, in pursuance of such an order, the liquors were held to become the property of the pur- chaser upon delivery to the carrier in Kentucky, and if not in- tended for unlawful sale by the claimant in Maine, were declared not to be subject to seizure while in the possession of the express company. court said: " A carrier is a servant of commerce, and is protected under con- stitutional provisions for the regula- tion of commerce in the discharge of all the duties of a carrier recognized by the law. Regulation of commerce reach him while he is in the discharge cf duties pertaining to commerce. When he ceases to be a carrier he is beyond the protection provided by regulations for commerce. If he eeasea to be a carrier and becomes a warehouseman, he cannot be pro- 'tected as a carrier." Per Beck, J. 48. State v. American Express Co. lis Iowa, 447, 92 N. W. 66, citing • v. O'Neil, 58 Vt. 140, 2 All. 586, 56 Am. Rep. 557; State v. Goss, 59 Vt. 226, 9 Atl. 829; 59 Am. Hep. 706; United States v. Shriver, 23 Fed. 134; United States v. Clin-. •_><; Fed. 515; United States v. Chevallier, 107 Fed. 434: Raker v. Bourcicault, 1 Daly (N. Y.) 24; State v. Wingfield, 115 Mo. 428, 22 S. W. 3G3, 37 Am. St. Rep. 406; Crabb v. State, 88 Ga. 584, 15 S. E. 455; Dunn v. State, 82 Ga. 27, 8 S. E. 80G, 3 L. R. A. 199; Wagner v. Hallock, 3 Colo. 170. 49. State v. Intoxicating Liquors, 98 Me. 464, 57 Atl. 798. 50. State v. Intoxicating Liquors, 98 Me. 464, 57 Atl. 798. The court said in this case: "In the order which the claimant sent to the Ken- tucky firm, he designated the carrier to whom the liquor was to be deliver- ed, and specified that is was to be shipped C.O.D., express paid. Under such circumstances the carrier in re- ceiving and transporting the liquor acts as agent of the purchaser. ' The contract stands upon the simple rule of the common law. The seller was entitled to his price, and the buyer to his property, as concurrent acts. The title passed to the vendee when the bargain was struck. Any loss of §§ r> 1 u , ~> i ; ; j search and seiztjre laws. - 7 - § 512. Liquor shipped from another state — South Carolina. In a late case in South Carolina, a seizure of Liquors in the l>i.w-;in]i df one who was bringing them from another state, was held just ititd, it appearing thai the carrier had knowledge that such liquors were to be used for unlawful sale and he being an aider and abettor in such scheme. 51 But in this state it has also been decided that a suit for damages may be maintained againsl a dis- pensary constable for the illegal seizure of liquor imported for personal use or in transit from another state/'- And in an action against an officer for violation of his duty in seizing exempt liquor, as where it is in transit from another state, in which punitive damages are claimed, it is proper for him to plead and prove on the issue of wilfulness and malice that the plaintiff was known as a professional dealer in illicit liquors. 53 § 513. Liquor shipped from another state — Vermont. In a case in Vermont, it is decided that a statute which au- thorizes the seizure of liquor, intended for unlawful use, in the pos- session of an express company does not interfere with interstate commerce and is constitutional. In this case the liquors in ques- property by accidenl would have been The fact thai i ! his loss. The vendor had a lion on were prepaid by the seller in ac- the goods for his price. The vendor cordance with the term-; of the could sue for the price, and the vendee order has no tendency to show thai upon a tender of the price could sue he intended to preserve the jua d for the property.' staler, [ntoxicat- nendi and to prevent the pro] ing Liquors, Moffitt, claimant, 7:! Me. from passing to the vendee. Sawyer 278. This rule was affirmed in state .Medicine Co. v. Johnson, 17-- Mass. v. Peters, 91 Me. 31, 39 All. 342, and 374, 59 Atl. L022. In the case at bar imcd in Greenleaf v. Gallagher, the liquor was sold and delivered, and 93 Me. 549, 15 Ail. 829, 7! Am. St. the title passed to the claimant in Rep. 371. The law is well established Kentucky, and noi in Maine.' - Per that in the absence of any evidence to Whitehouse, J. the contrary, such a delivery to a 51. Jaro v. Bolstein, 7'> s. C. 111. common carrier ai the express requesl 52 S. E. s 7o. of the purchaser will be deemed a 52. Smith V T.afar. ('.7 S. ('. 491, delivery to the purchaser himself. 46 S. E. 332. Frank v. Boey, 128 Mass. 263 and 53. Smith v. Lafar, G7 S. C. 491, Wigton v. Bowley, L30 Mass. 252. 46 S. E. 332. 576 SEARCH AND SEIZURE LAWS. [§ 514 tion were shipped C.O.D. from out of the state, and it was declared that the contract was an inchoate one and that there being a con- dition precedent the title did not pass until the performance as carrier of that condition. 54 This case came before the United States Supreme Court on a writ of error which was dismissed on the ground that the decision of the state court was on the broad ground of where the sale took place and that no federal question was involved therein. 55 § 514. Liquor shipped from another state — United States. In the United States Supreme Court in a case which involved the construction of a statute in Iowa, under which liquors con- signed from Illinois into Iowa were seized before delivery to the consignee on the ground of a non-compliance with the state law as 54. State v O'Neil, 58 Vt. 140, 2 Atl. 586, 56 Am. Rep. 557. The court said: "Attached to the very body of the contract, and to the act of deliv- ery to the carrier was the condition of payment before delivery of posses- sion to the consignee. With this con- dition unfulfilled and not waived it would be impossible to say that a de- livery to the carrier was intended by tlie consignor as a delivery of posses- sion to the consignee; or as a surren- der of the legal title. The goods were intrusted to the carrier to transport to the place of destination named, there to present them for acceptance to the consignee, and if lie accepted them and paid the accompanying invoice and the transportation charges, to deliver them to him; otherwise, to notify the consignor and hold them subject to his order. It is difficult to see how a seller could more positively and unequivocally express his inten- tion not to relinquish the right of property or possession in poods until payment of the purchase price than by this method of shipment. We do not think the case is distinguishable in principle from that of a vendor who sends his clerk or agent to deliver the goods, or forwards them to, or makes them deliverable upon the order of, his agent, with instruc- tions not to deliver them except on payment of the price, or perform- ance of some other specified condition precedent by the vendee. The vendors made the express company their agent in the matter of the delivery of the goods, with instructions not to part with the possession of them except upon prior or contemporaneous re- ceipt of the price. The contract of sale therefore remained inchoate or executory while the goods were in transit, or in the hands of the express company, and could only become ex- ecuted and complete by their delivery to the consignee. There was a com- pleted executory contract of sale in New York, but the completed sale was, or was to be, in this state." Per Royce, C J- 55. O'Neil v. Vermont, 144 U. S. 323, 12 Sup Ct. 693. § 515] SEARCH AND SEIZURE LAWS. 577 to a certificate thereon by the county auditor, it was determined that so long as the goods were in transit the [owa law could not apply without being repugnant t<> tin- Constitution <>|' the United States. 56 And it has been decided in the federal conns that a statute providing that: " Any package containing intoxicating liquors without such certificate (the certificate of a county dis- penser) which shall be brought into this state or shipped out of the state or shipped from place to place within the state by any rail- road, express company, or other common carrier, shall be regarded as intended for unlawful sale," is to be regarded as a rule of evi- dence prescribed only in civil or criminal proceedings against the common carrier transporting liquors in violation of the act and will be extended to no other case and is not applicable to liquors transported into the state prior to the taking effect of the act and from that time kept in the warehouse. 57 § 515. Liquor shipped from another state — conclusion From an examination of the cases in this connection the follow- ing propositions seem to be sustained : First. A person has the right to purchase liquors in another state and have them shipped to him in his own state where the sale is completed in the former state and the liquor is intended for the consignee's personal use. In such a case the liquors cannot be legally seized within the state of the consignee's residence. Second. It would seem that liquors may be seized even in the hands of a carrier transporting them from another state with knowledge of an unlawful purpose to which they are to be put, as in such a case he becomes an aider and abettor in an attempt to violate the law. Third. Where the carrier has become a warehouseman merely, the relation of a car- rier having ceased, liquors which are in his possession and are in- 56. Rhodes v. State of Iowa, 170 B7. Bound v. South Carolina Ry. U. S. 412, 18 Sup. Ct. 664. Co., 57 Fed. 485. 578 SEARCH AND SEIZURE LAWS. [§ 516 tended for unlawful sale or use may be seized while in his posses- sion as a warehouseman. Fourth. Where goods are shipped C.O.D. from one state to a consignee in another state, the carrier becomes the agent of the consignor and the contract is not a com- plete one until the delivery to the consignee in his state of residence and the payment of the price by him. The sale then becomes a sale in the state in which the consignee lives and is subject to the laws of that state and being so the liquor may be seized even though in the hands of the carrier. 58 § 516. Seizure of property in connection with liquors, A statute is constitutional which provides that places where liquors are kept for unlawful sale are common nuisances and which authorizes the condemnation and destruction of both the liquors and property used in maintaining such place. 59 So in an early case in Connecticut it was held that an act was constitutional which provided that all liquor intended by the owner or keeper thereof to be sold in violation of the act should with the vessels in which it was contained be forfeited to the town wherein it was kept. 6a But where the statute does not authorize the seizure of vessels con- taining liquors an officer making such a seizure has been held to be liable therefor. 61 So the officer unless authorized by statute cannot 58. In this connection we quote 59' State v. McManus, 65 Kan. from Moore on Carriers, p. 199, 720, 70 Pac. 700. '• Where goods are sent with instruc- A description of the property tions not to deliver them until they to be seized in connection with the are paid for, the carrier who accepts liquors as "all articles found therein them with such instructions, under- used in or about the carrying on of takes not to deliver them unless the the business aforesaid " has been held condition of payment is complied sufficient. State v. Markuson, 7 N. with. In addition to its obligations D. 155, 73 N. W. 82. as a carrier, it becomes the agent of GO. State v. Wheeler, 25 Conn. 290. the consignor to collect and receive 61. Black v. McGiliery, 38 Me. 287. the price of the goods and return the But see Perkins v. Girds, 29 Vt. money to the consignor. This obliga- 343, holding that where the officer tion is not one arising or implied seizes liquors he may also seize the- from the nature of its business, but is casks in which they are contained, based upon contract, express or im- though the statute contains no ex- plied." press provision to that effect, it \\ § 517] SEARCH AM) Sl.l/I KK LAWS. -7..) seize bar fixtures or refrigerators. 02 In a ease in Maine, however, it is decided that in executing the search and seizure process the officer is not confined to faking the liquors bu1 may also take and carry away such articles <>(' property as may reasonably be used as evidence of guilt on the trial on the process. 88 And a beer faucet being adapted for the illegal keeping and Bale of liquors has been held liable to seizure. 04 ]>ut though a seizure of property other than the liquors may be justified where to be used for the purpose of evidence, the statute not authorizing the same, the owner thereof should be entitled to a return of such property when it has accomplished the purpose for which seized. § 517. Complaint generally. The complaint should contain direct and positive allegations of jurisdictional facts required by statute without resort to intend- ment or inference. 65 So in a recent case in Texas it is declared that it is essential that the complaint should state every material fact necessary to constitute the offense as required by the act and for which the forfeiture is sought, and which is required to be proven on the trial of the case to enable the state to recover the being said that it can not be sup- sufficient. Commonwealth v. Leddy, posed that the legislature intended 105 Mass. 381. that an officer going to seize goods Where in the statute there is a dis- must go provided with casks. tinction between the words "house" 62. Her Brewing Co. v. Campbell, and " dwelling-house " the word 66 Kan. 361, 71 Pac. 825 "house'' will not be held in a com- 63. Getchell v. Page, 103 Me. 387, plaint as the equivalent of the word 59 Atl. 624. "dwelling-house/' Sanders v. State. 64. Collins v Noyes, 66 N. H. 619, 2 [owa, 230. 27 Atl. 225. Complaint not supported by 65. State v. Whalen, 85 Me. 469, verdict. Where a complainl alleges 27 Atl. 348. In re Liquors of Hox- that the liquors wore deposited and sie, 15 R. I. 241, 3 Atl. 1. kept, it is not supported by a verdict In a complaint and warrant in (lie alternative thai the liquor was for the search of a dwelling owned or kept by Buch person. I '>>m- house. an averment that the com- monwealtfa v. Certain Intoxicating plainant's belief that liquor is kept Liquors, 4 Allen (Mass.) 601. there is founded on common report is A defacement of a complaint V 580 SEARCH AND SEIZURE LAWS. [§§ 518,519 judgment of forfeiture. 06 As a general rule it is sufficient if it conforms to the statute in setting out the offense. 67 So a complaint in substantial compliance with the terms of the statute in respect to the names of the complainants is sufficient. 68 § 518. Sworn complaint. Where a statute requires facts to be shown by affidavit as a basis for search and seizure, an affidavit made upon information and belief and which does not state or show the facts required by statute gives no jurisdiction to the court to issue a warrant, and if a warrant is issued in such a case it is void and resistance of it is not a contempt. 69 Under a statute requiring that there must be a sworn complaint, a complaint is sufficient where made on solemn affirmation by one conscientiously scrupulous of taking an oath. 70 The oath of one of the complainants does not form a part of the complaint, although incorporated therein. 71 § 519. Warrant generally. Where the statute requires a warrant for the seizure of liquor there must be a compliance therewith, and an information for the forfeiture of liquor is fatally defective where it does not appear that it was so seized. 72 A provision that a search warrant " shall be with pen and ink which does not in 70. State v. Welch, 79 Me. 99, 8 fact alter the complaint but leaves it Atl. 348. as it was before does not vitiate it. 71. Commonwealth v. Intoxicating State v. Intoxicating Liquors, 44 Vt. Liquor, 142 Mass. 470, 8 N. E. 421. 208. 72. i n re The Liquors of Peter Ger- 66. Myers v. State, 47 Tex. Civ. main, State v. Certain Liquors, 21 App. 336. R. I. 531, 45 Atl. 552. 67. in re The Liquors of Hoxsie, Where a warrant was valid at 15 R. I. 241, 3 Atl. 1. the time it was issued and has 68. State v. Intoxicating Liquors, been legally served by an officer he 44 Vt. 208. cannot be affected by any omission of 69. State v. McGahey, 12 N. D. the magistrate in the subsequent pro- 535, 97 X. W. 805, followed in State ceedings in the case. Gray v. Davis, v. Patterson, 13 N. D. 70, 99 N. W. 27 Conn. 447. 67. A search warrant can only he § 519] SKAKCH AND SEIZURE LAWS. •>1 supported by the oath of the complainant " is complied with by the complainant's making oath to the complaint upon which the war- rant is issued. 78 Where the constitution prohibits the issuance of a warrant to search except upon probable cause and supported by I oath or affirmation, it requires thai a statute should be so framed as to require that one complaining shall state the facts fn.m which he has formed his belief so that the magistrate may judge whether they constitute the probable cause required by the statute. 71 In Indiana it has been decided under a similar constitutional pro- vision, that an act is valid which provides for the issuance of a warrant on information and belief. 75 And in an early case in Con- necticut, under a constitutional provision requiring thai a wan-ant must be "supported by oath or affirmation" an oath "that they have reason to believe and do believe the allegations in said com- plaint to be substantially true," was held sufficient, it nol being necessary that the facts upon which the belief was founded should be sworn to. 76 In such a warrant if all that is necessary to show served to search one place and if it describes more than one place it is invalid. Stat.- v. Duane, 100 Me. 447, 62 All. 80. The jurat is not conclusive as to the time of making the oath and where there is clearly an error therein in this respect a recital in the war- rant may control. Commonwealth v. Certain Intoxicating Liquors, 128 Mass. 72. Justice entitled to fees. — When warrants are issued for the seizure of intoxicating liquors, and no liquors are found, the justice issuing the warrants is entitled to his fees, and lie may recover the same of the county, (ianett v. Polk County, 7 s Iowa 108, 42 X. \Y. 618, following Byram v. Polk County, 7f> Iowa 7a. 40 X. W. 102. Effect of misrecital. — Where a warrant was in fact issued by a justice of the court it is nol a fatal defect that it contains a recital that it was issued by the elerk of the court, this being regarded as at mosl a merely formal misrecital. Common- wealth v. Certain intoxicating Liq- uors. 135 Mass. 519. Duty of judge to issue ■war- rant. — Where upon the presentation of an affidavit and information to a judge of a designated court it i- his duty to issue a warrant, he can not refuse to do so. State v. Fulkerson, 73 Ark. 163, 83 S. \V. 934, 86 S. \\ . 817. 73. Downing v. Porter, 8 Gray i Mass. i 539; Allen v. Staples, 6 Gray (Mass.) 191. 74. Dupree v. State (Tex. S. I 119 S. \Y. 301. 75. Rose v. State | Ind. S. C. 1909), v7 \. E. 103. 70. Lowrey v. Gridley, 30 Conn. 450. 582 SEARCH AND SEIZURE LAWS. [§§ 520,521 rbat the liquors are liable to forfeiture aud the persons arrested to punishment is set out and the warrant duly issued from a court of competent jurisdiction, it is sufficient to hold the liquors. 77 Where the statute does not prescribe the time, a warrant shall remain in force it will remain in force a reasonable time only, and it is for the court to determine what is a reasonable time. 78 § 520. Warrant and complaint in one instrument. The search warrant may embody the complaint therein and both be issued together as one instrument, the complaint in such case not losing its identity. 79 And it has been decided that the warrant of arrest and the search warrant may be in the same in- strument. 80 Where the warrant and complaint are in one paper it is held that an averment in the complaint need not be repeated in the warrant which refers to the complaint. 81 Where the statute requires the complaint to be fully set forth in the warrant, there should be a compliance therewith. 82 § 521. Variance between complaint and warrant. A material variance in the warrant from the description of the place given in the complaint will render the warrant void. 83 But a variance between the complaint and the warrant as to the number of the building to be searched, the complaint being correct, is not material and a search at the number given in the complaint is justified, the place being otherwise sufficiently described. 84 And if the complaint and warrant contain repugnant words as to the owner, they will be rejected as unimportant if, independent of 77. Adams v. McGlinchy, 66 Me. 81. Guptill v. Richardson, 62 Me. 474. 257. 78. State v. Guthrie, 90 Me. 448, S3 . Guenther y D fl Q 38 Atl. 368, holding a delay of three J ' (Mass ) 400 days unreasonable in the absence of "' some explanation. 83 ' Commonwealth v. Certain In- 79. State v. Erskine, 66 Me. 358. toxicating Liquors, 109 Mass. 371. 80. State v. Stoffels, 89 Minn. 205, 84. State v. Robinson, 49 Me. 285. 94 X. W. 675. § 522] SEARCH AND SEIZURE LAWS. 533 them, the description given is sufficiently clear to designate the place to In- searched. sr ' Again, a command to the officer in a war- rant for search and seizure to search the person when the compli contains no corresponding allegation may be regarded as sur- plusage where enough remains with thai stricken ou1 to constitute a record complete in itself and sufficient upon which to found a verdict and judgment. Therefore this fact is no ground in ai of judgment. 80 § 522. Who may complain. It is generally provided by statute who may make the complaint or information in proceedings of this character. Where the statute so requires the officer making the seizure must also make the com- plaint for the violation of the law. 87 But the fact thai the in- formation does not aver that it was made by a "credible resident" of the county does not constitute a sufficient ground for demurrer. 88 So in Iowa it has been decided that though the in- formant for a search warrant must, by statute, be a resident of the county, it is not necessary to allege that, it being held sufficient if the justice issuing the warrant personally knows that fact. 89 And a complaint and warrant arc not defective, because they only give the residence of the complainant as of a certain county, his residence being under the statute immaterial upon any issue presented. 90 The collector of customs has, in Alaska, been held a proper person to petition for a warrant for search and seizure of liquor unlawfully imported. 91 85. State v. Barthtt. 17 Me. ."iSs.. any " credible resident of the county." se. state v. Chartrand, 86 Me. 547, s: >- State v. Blair and Certain [n- .'?(» Atl. 10. toxicating Liquors, 72 towa 591, ■"•! 87. Fenner v. St. te, 3 R. I. 107. N. W. 432, citing state v. Thompson, 88. Weir v. Allen, 47 Iowa 482, eit- 44 [owa 399. ing State v. Thompson, 44 Iowa 399. 00. Commonwealth v. Intoxicating The statute simply provided thai Liquors, 113 Mass. 13. the information should be made by 5>1 - In r< Moore, 66 Fed. 047. 584 SEARCH AND SEIZURE LAWS. [§§ 523, 524 § 523. Alleging probable cause. Where a statute provides that warrants shall allege that probable cause has been shown for their issuance such provisions must be complied with. 92 But unless the statute expressly requires it, the warrant need not allege that probable cause has been shown. 93 Again, a conviction before a justice of the peace, upon a complaint for illegally transporting liquors, from which an appeal has been taken is not sufficient evidence of probable cause to believe that the defendant was so transporting the liquors to justify the previous arrest of the defendant and seizure of the liquors by an officer with- out a warrant under a statute permitting such procedure by him upon reasonable proof. 94 § 524. Allegations as to liquors — kinds and quantities. It is a general rule that both the complaint and warrant should contain a description of the liquors which the officer is to search for and seize. The object or necessity of such an allegation is manifest in that it tends to prevent unreasonable searches and seizures, and to act as a limitation upon the officer's authority. And where the constitution requires that the thing to be seized shall be described in the warrant a statute has been held unconstitutional in authoriz- ing seizures and failing to require a description of the liquors to be seized. 95 In this connection it is decided that a description of the liquors seized in the libel, mention and notices that is sufficiently specific to notify the owner of the fact of seizure and the identity of the liquors seized is all that is required. 90 Under a constitu- tional provision requiring only " a special designation of the place to be searched and articles to be searched for" liquor may in the f>2. Commonwealth v. Certain In- 94. Mason v. Lathrop, 7 Gray toxicating Liquors, 105 Mass. 178, (Mass.) 354. holding that a warrant thus defective »5. Dupree v. State (Tex. S. C. will not protect an officer in its serv- 1909), 119 S. W. 301. ;,.,. !>0. Ring v. Nichols, 91 Me. 478, 93. Holland v. Seagrave, 11 Gray 40 Atl. 329. (Mass.) 207. SEAR* II AND SEIZURE LAW 8. § 524] wrrant, be described simply by its generic name, if it be destitute of any peculiar and known marks or qualities, by which, in the description, it can be distinguished from other articles of the same general name. 97 And a description in the complainl and warrant of the property as intoxicating liquor has been held to be suffi- cient. 98 A specification in the complaint as to the kinds and quan- tities of liquors will 1,.. construed as descriptive of the liquor- and not to limit their quantities and the authority of the officer under the warrant which recites the complaint has been laid not to be limited to a seizure of the quantity specified." And the fart that the quantity of liquors specified in the complaint and warrai considerably in excess of the quantity actually seized is not a A description of the liquors in a warrant as " a certain quantity of gin, being about and not exceeding one hundred gallons," has been held suffi- cient. Downing v. Porter, 8 Gray (Mass.) 539. Sufficient description of liquors see Commonwealth v. Intoxicating Liq- uors, 113 Mass. 13. 97. State v. Robinson, 33 Me. 564, holding that a warrant for the search of "' spirituous or intoxicating liq- uors " will not be considered unau- thorized, for the want of a sufficient description of the thing to be searched for. 98. Lincoln v. Smith, 27 Vt. 328. The court said: "In the statute un- der consideration, and in the com- plaint, and warrant, the property 1<> be sea relied for and seized is de- scribed as intoxicating liquor, and it could not well be designated with more particularity. It could not have I n the intention of the constitution, to require the things to be searched for and seized, to be so particularly described, as to prevent any benefic- ial purpose to be accomplished by a search warrant. All that should be required is to describe them as nearly as may be. If the liquor had 1 n described, by a designation of its par- ticular kind, or species, instead of using the generic term, it is difficult to see how this would have given more certainty; and besides in moal cases it would be impracticable." Per Bennett. ,F. Allegation as to mixed liq- uors.— A complainl and warrant to search for " intoxicating liquoi wit: a certain quantity of mixed liq- uors" sufficiently alleges that the mixed liquors an- intoxicating. Com- monwealth v. uertain intoxicating Liquors, 1 10 Mass. 41t;. !> J>. State v. Brennan's Liquoi Conn. 278. Compare Commonwealth v. Certain [ntoxicating Liquors, 13 Allen I Mass. i :.m. holding that if a search warrant for intoxicating liquors de- scribes the liquors simply by naming the kinds and quantities, liquors of the kinds and not exceeding the quan- t it ies named may lie seized. '■ I iommonwealth v. Certain Intox- icating Liquors, :»7 Mass. 63. 58G SEARCH AND SEIZURE LAWS. [§ 525 ground for the dismissal of the complaint. 1 Ordinarily the author- ity of the officer is regarded as limited to a seizure of the kinds of liquors specified. So where the liquor was described as " lager lxrr and other malt, spirituous liquor " in the complaint, it was held that it did not authorize the seizure of whiskey kept for un- lawful sale. 2 And the principle that words of a special description following a videlicet restrict and limit the words of general de- scription has been applied in the case of a complaint and warrant for the seizure of " certain intoxicating liquors, to wit : " followed by a designation of the particular kind of liquors. 3 § 525. Allegation as to intent — keeping for unlawful sale. Where the statute requires an allegation in the complaint of an intent to sell in violation of law, such an allegation is essential to the validity of the complaint as the foundation of the prosecu- tion. 4 So it is held essential to a forfeiture that it should be alleged in the complaint and proved on the trial that the liquors were intended for sale in the city or town in which they were kept or deposited. 5 The keeping of the liquors for the purpose of un- lawful sales is generally what is essential to allege and not actual unlawful sales, though evidence of such sales is admissible as showing the intent of the keeping. fi Where the statute provides for seizure where liquors are kept for unlawful sale an allegation that they are so kept is essential in the complaint. 7 And a complaint is sufficient in charging that liquor was kept for sale in violation of law which contains an allegation that certain liquor kept by a designated person is intended by him for sale in the state, he not being authorized to manufacture, keep for sale or sell the same -• State v. Lager Beer, 70 N. H. <*. State v. Blair and Certain In- 154, 49 Atl. 575. toxicating Liquors, 72 Iowa 591, 34 3. Mallett v. Stevenson, 20 Conn. N. W. 432. 428. 7. State v. Erskine, 00 Me. 358; ■*• Commonwealth v. Certain Intox- State v. Spirituous Liquors, G8 N. H. ication Liquors, 4 Allen (Mass.) 593. 47, 40 Atl. 398. •-•• State v. Gurney, 33 Me. 527. 88 526 5271 SEARCH AND SEIZURE laws. 587 within the state. 8 Onder a statute in Rhode [sland ii has been held sufficient in such an information to charge thai the liquors were kepi " for Bale within the state in violation of law,*' "■' or to charge thai they "were kept for the purpose of Bale, without authority, within this state, againsl the statute. En this connection it has been decided thai an allegation that intoxicating liquors are kepi by a designated person, he not being authorized to -ell the -ana- for any purpose is sufficient, as it excludes any legal righl in him to sell the same in any manner. 1 ' § 526. Allegations as to owner or keeper. Where the statute requires it the information for a warrant must charge some specific person as the owner or keeper of the liquors with the illegal intent. 12 But in the absence of a statute providing otherwise it is sufficient to allege in the complainl that intoxicating liquors are kept " by a person unknown " for -ale in violation of law. 13 § 527. Description of place to be searched. As a general rule the complaint should describe the premises to be searched. 14 And a statute requiring a particular description of the place to be searched or the property to be seized must he com- s. Commonwealth v. Intoxicating 13. Commonwealth v. Certain En- Liquors, 110 Mass. ls-2. toxicating Liquors, lit; Mass. 21. !>• In re The Liquors m' Eoxsie, 15 14 - State v. Knowlton, 70 Me. 200; R. I. 241, 3 Ail. 1, holding it un- Flaherty v. Longley, 62 Me. 420; necessary to use the words "with Commonwealth \. Certain [ntoxicat- force and arms": " againsl tlic stat- ing Liquors, L13 Ma>s 455; Common- ute" or to contain negative aver- wealth v. Certain [ntoxicating La- ment setting out a lack of authority uors, 113 Ma—. 208; Commonwealth to keep liquors for sale. v. [ntoxicating Liquors, 11:*. Mas-. 10. iii re The Liquors of Young, 13; Commonwealth v. Certain [ntox- 1.") 1!. I. 243, '■> Atl. 3. icating Liquors, 6 Allen (Mass.) 596. ii. Commonwealth v. Certain In- Sufficiency of description of place toxicating Liquors, 110 Mass. 116. in particular cases. Bee 12. state v. Certain [ntoxicating Indiana. — Rose v. state (Ind, S. C. Liquors, 64 Iowa 300, 20 X. W. 445, 1909), 87 N. E. 103. following State v. Harris, 36 Iowa Maine— State v. Minnehan. 83 Me. 136. 310, 22 Ail. 177. 588 SEARCH AND SEIZURE LAWS. [§ 527 plied with. 15 And a constitutional provision that " a special designation of the place to be searched " shall be made is not an- swered by words which if used in a conveyance would not convey it and which would not confine the search to one building or place. 16 It may be stated generally that the description of the place in a complaint and warrant is sufficiently certain if it be such as would be required in a deed to convey a specific parcel of real estate. 17 The word " place " as used in a statute requiring a description of the place, should receive reasonable construction, not so broad as to encourage a looseness of procedure nor so narrow as to prevent a search of the entire premises occupied and used by a person in the ordinary course of his business as an innkeeper. 18 And a requirement that a place shall be described " as nearly as may be " is construed as meaning as nearly as the circumstances will admit, and in general the place should be described with such reasonable particularity as to make it distinguishable from all other places. 19 Massachusetts. — Commonwealth v. Certain Intoxicating Liquors, 122 Mass. 8; Commonwealth v. Certain Intoxicating Liquors, 122 Mass. 36; Commonwealth v. Certain Intoxicat- ing Liquors, 117 Mass. 427; Common- wealth v. Certain Intoxicating Liq- uors, 116 Mass. 27; Commonwealth v. Certain Intoxicating Liquors, 110 Mass. 182; Commonwealth v. Certain Intoxicating Liquors, 107 Mass. 216; Commonwealth v. Certain Intoxicat- ing Liquors, 6 Allen 599. forth Dakota.— State v. Markuson, 7 \". D. 155, 73 N. W. 82. Vermont. — State v. Liquor, Drew, 38 Vt. 387. An averment in a complaint and warrant for the search of a dwelling house that it was occupied by the de- fendant " as a place of common re- sort kept therein " is sufficient. Com- monwealth v. Leddy, 105 Mass. 381. But an averment in a complaint for the search of a dwelling house that " the same is a place of common re- sort " is insufficient to describe that " a place of common resort is kept therein." Commonwealth v. Certain Intoxicating Liquors, 97 Mass. 332. 15. State v. Santo, 2 Iowa 165, 63 Am. Dec. 487. 16. State v. Robinson, 33 Me. 564. 17. State v. Bartlett, 47 Me. 388. The description in a warrant of a place to be searched should, it is de- clared in an early case in this state, be as certain as would be necessary in a deed to convey such place. Jones v. Fletcher, 41 Me. 254, holding that where a warrant commands an officer to search for liquors in a dwelling house he is not thereby au- thorized to search in a barn. 18. State v. Liquor, Drew, Claim- ant, 38 Vt. 387. 19. Gray v. Davis, 27 Conn. 447. e -ogj BEAR< II AND SEIZURE LAWS. 589 So a constitutional provision that a search warrant shall describe " as nearly as may be the place to be searched," has been held to require that the description be as near as the circumstances will permit, according to the nature of the property or thing. 20 Bu1 where the statute required the place, person and property to be described " as particularly as may be," and it was contended that if the complainant described them as particularly as he could, or as he knew how, this was sufficient, however loose and indefinite it might be, the court declared that this was giving a false and un- necessary sense to the words which seemed to convey the idea of the greatest degree of certainty and could not be construed as in- tended to loosen the particularity required. 21 § 528. Description of place to be searched— continued If the description of the place to be searched leaves no discretion to the officer as to what place he will search, but directs him in that respect, it is sufficient. 22 And where the description in the complaint of the place where the liquors are kept is particular and complete and amply adequate for its identification, the certainty and sufficiency of that description will not be affected by an er- roneous and immaterial averment as to the occupants of the place or by allegations of the ownership and custody of the liquor. 23 20. State v. Snow, 3 R. I. 64. the place designated in his warrant, 21. Santo v. State, 2 Iowa 165, 212, a cask of liquor answering to this 63 Am. Dec. 487. description in every particular, hut 22. State v. Intoxicating Liquors, in the custody of a stranger who 44 Vt. 208. claimed to be its owner, or in the ac- 2:5. Gray v. Davis, 27 Conn. 447. tual custody of the plaintiff and in- The court said: "Suppose the war- tended to be sold by him. Or sup- rani described the liquor by specific pose the officer finds in the place des- name and quantity, and the vessel ignated, a cask of liquor answering containing it by size, form, material, to the description in the warrant, but color, artificial marks, etc., with ' cer- not in the visible custody or posses- tainty to a certain intent in every sion of any one. Could the officer be particular' but had added as in this subjected as a trespasser for taking warrant that the liquor was owned or the cask of liquor, in either of the kept and intended to be sold by H. K. cases put. if it should afterwards ap- And suppose that the officer found, in pear that the allegations in his war- 590 SEARCH AND SEIZURE LAWS. [§ 529 Under a statute providing that in such proceedings the complaint and warrant shall set out fully, plainly and substantially the place to be searched, the allegation of place in a complaint has been held to be a material traversable allegation and the claimant is held to have the right to require proof of it and to submit this issue to the jury. 24 § 529. Description of place to be searched — rules illustrated. Designating the place as a certain tenement situated on a cer- tain street and of a certain number is sufficient. 25 And a mis- description of the premises as to number is not fatal where there is sufficient in the complaint and warrant to clearly identify them. 20 And though a street in which the premises are located is desig- nated by a name other than that which the municipal authorities have given to it this is not fatal, as proof is admissible to show that it was known by one name as well as the other. 27 So though a street is misnamed in the warrant in describing the place, the warrant is not thereby invalidated if, in other respects, the place is truly described and so as to identify it with the place described in the complaint. 28 Again a description of the place to be searched by giving the owner's name and the kind of liquors which he was believed to have kept has been held sufficient. 29 And where the place where the liquors were kept was described in the complaint rant regarding ownership, custody or 26. Commonwealth v. Certain In- criminal intent, were false? We toxicating Liquors, 122 Mass. 36. think he could not. Upon the whole 27. Commonwealth v. Certain In- we think these allegations no part toxicating Liquors, 113 Mass. 208, of the description of the liquor, that holding that evidence of persons liv- it is immaterial whether they were ing in the neighborhood and using the true or false, that the description of street for years, that they never heard the liquor was sufficient, and conse- it called by another name than that quently that the charge to the jury given in the complaint is sufficient, was wrong." Per Sanford, J. 28. Downing v. Porter, 8 Gray 24. Commonwealth v. Certain In- (Mass.) 539. toxicating Liquors, 117 Mass. 427. 20. State v. Thompson, 44 Iowa 25. Commonwealth v. Intoxicating 399. Liquors, 150 Mass. 164, 22 N. E. 628. §§ 530,531] SEARCB AND SEIZURE LAWS. 591 and warrant as a brick store and the front and principal pari of the store was of brick bu1 the liquors were kepi and were seized in a wooden addition in the rear which communicated with the main room by a door and the. store was also known in the neighborhood by the name of the " brick store," it was held thai the place suffi- ciently answered the description in the warrant. 80 So where the complaint averred that intoxicating liquors were kept by a certain person in a " hotel and barn " on the north side of the street, in a certain town, " known as the Valley House and barn in the rear thereof, next east of the bakery building occupied in part" by a designated person and the averments of the complaint were recited in substance in the warrant it was held that the building to be searched was sufficiently described. 31 But where the only descrip- tion of the place where the liquors are kept and deposited is " in a valise in the possession of " a certain person in a certain city, it is not sufficient. 32 § 530. Time of service of warrant. The service of a search warrant need not be limited to the day-time. 33 Where there is no requirement in the statute that to authorize a search in the night time the warrant shall contain a direction to that effect, a general direction to search without any restriction as to time is sufficient authority to make a search in the night time as well as in the day time. 34 § 531. Search and seizure without warrant — generally A search without a warrant is in some cases authorized by so. Lowrey v. Gridley, 30 Conn. locality and thai the word is not 450. broad enough to cover Bearch for and 81. Commonwealth v. Certain In- Beizure of liquors in a valise, toxicating Liquors, 146 Mass. 509, 16 • i:t - State v. Brennan's [iquors, 25 X. E. 298. Conn. 27s. :vz. state v. Fezzette, 103 Me. 4G7, 84. State v. Bennett, 95 Me. 197, 69 Atl. 1 c>T3, holding that the word 40 Atl. 867. See Commonwealth v. "place" lias reference ordinarily to Hinds, 145 Mass. 182, 13 X. E. 397. 592 SEARCH AND SEIZURE LAWS. [§ 532 statute. 35 And a statute is constitutional which provides for a seizure without a warrant and under such a statute it has been held to be immaterial whether the complaint is made before or after the seizure. 30 The authority, however, to. seize liquors without a warrant, though sometimes necessary, is a high power and being in derogation of a common law right, it is to be exercised only where it is clearly authorized by the statute or rule of law which warrants it. 37 And where there is nothing in a statute authorizing a search and seizure without a warrant the court will not enlarge the tenor of the act by giving it a construction which dispenses with a war- rant. 38 § 532. Same subject — allegations in complaint and warrant. Though the complaint should contain a recital that the liquors " are still kept and deposited " by the defendant, yet where a seizure has been made without a warrant it is not necessary to in- sert in the complaint a false recital to that effect. 39 So where an officer has taken liquors without a warrant, his complaint for a warrant may allege that the liquors were unlawfully kept and deposited in the place when and where he found them and that they were then and there intended for sale within this state in violation of law. 40 And in the case of a seizure of liquors without warrant, an allegation in the complaint that at the time and place of seizure the place being described as within a specified county, the person making the seizure was a sheriff, duly qualified to serve a warrant in such cases, is a sufficient allegation of his competency 35. State v. Bradley, 96 Me. 121, 51 2 Atl. 586, 56 Am. Rep. 557. Atl. 816. 37. Kennedy v. Favor, 14 Gray 36. State t. Intoxicating Liquors, (Mass.) 200. 58 Vt. 594, 4 Atl. 229. 38. Bound v. South Carolina Ry. It is competent for the legis- Co., 57 Fed. 485. lature to provide for the seizure of 39. State v. LeClair, 86 Me. 522, intoxicating liquors without a war- 30 Atl. 7. rant, the same act not purporting to 40. State v. Dunphy, 79 Me. 104, confer upon the officer the power of 8 Atl. 344; State v. McCann, 59 Me. search. State v. O'Neil, 58 Vt. 140, 383. < 533] SEARCB AND SEIZURE LAWS. 593 to make the seizure. 41 And where an officer has seized liquors without a warranl it is nol accessary to the sufficiency of a war- rant subsequently issued that it Bhould contain a command to Bearch the premise s. 42 § 533. As to arrest of person having liquors in possession. Where the statute requires the officer if he find the liquors "to arr< -t such person or persons " as are named and have them forth- with before the judge or justice by whom the warrant wa- issui d, the warrant must so dired him and if it does not the proceedings are unauthorized. 43 And where the complaint under the Btatute requires the officer to seize the liquors and also arresl the person in whose custody they are alleged to be, he must have both be- fore the court, when the proceedings become divided and are two distinct cases. 44 So where the liquors are seized and the one in whose custody they are is arrested and such person may be prose- cuted criminally in a separate proceeding his acquittal does no1 en- title him to a restoration of the liquors nor will a condemnation of the liquors necessarily result in his conviction. 1 "' Upon the arrest of a person for violating the liquor law liquors may properly be seized for the purpose of using them as evidence againsl him. 46 But one brought before the court as owner or keeper of liquor seized is held to be entitled in Vermont to cross-examine and pro- duce witnesses and to be heard by himself and counsel without filing any claim in writing or giving any security. 1 ' 41. State v. Erskine, 66 Me. 358. officer did not in accordance with the Sufficiency of averment in com- requirements of the warrant arrest plaint of officer's authority to seize or give any reason for not arresting without a warrant ; state v. Holland the person in whose possession the liq- (Me. 1908), 71 Atl. 1095. uora were found. i-\ stale v. LeClair, 86 Me. 522, 45. State v. Miller. 48 Me. 576. 30 Atl. 7. ,,: - Padgett \. Sturgis, 6 Ga. App. 43. state v. Leach, 38 Me. 432. 544, 65 S. E. 352. 44. State v. Miller, is MLe. 576. ,7 - State v. Cntoxicating Liquors, See Heath v. Farnham, 53 Me. 172, (State v. Jabbour), 72 Vt. 22, 47 holding that judgment will not be Atl. 107. arrested in case of libel because the 594 SEARCH AND SEIZURE LAWS. [§§ 534,536 § 534. Arrest without warrant. A statute which authorizes officers without a warrant to arrest any person found in the act of illegally selling or transporting intoxicating liquors, and seize the liquors, vessels and implements of sale in the possession of such person, and detain them in some place of safe keeping until warrants can be procured for the trial of the person and the seizure of the liquors is constitutional. 48 And if in the case of the seizure of intoxicating liquors without a warrant, a respondent is arrested at the time of the seizure and before the issuance of the warrant, even if such arrest is illegal it in no way affects the validity of the complaint and warrant, and cannot be taken advantage of by a respondent charged with having intoxicating liquors in his possession for an unlawful purpose, either before or after conviction. 49 But to justify the arrest of a person without a warrant on the ground that he was illegally trans- porting liquors the officer should show that he had reasonable proof at the time that such person was illegally transporting them it not being sufficient that such officer acted in good faith and had reasonable cause to suspect this was true, where the statute only authorizes such action in cases where the officer has or can obtain reasonable proof. 50 § 535. Effect of seizure of more liquors than authorized. The fact that an officer has taken more liquors than are described in the warrant renders the seizure only ineffectual as to the liquor which he was not authorized to seize. As to those liquors which the warrant directed him to seize it is valid. 51 48. Jones v. Root, 6 Gray (Mass.) Liquors (Mass. S. C. 1909), 89 N. E. 4.35. See also State v. O'Neil, 58 Vt. 918. The court said: "This principle 140, 2 Atl. 580, 56 Am. Rep. 557. was stated and followed by this court 49. State v. Bradley, 90 Me. 121, 51 in Commonwealth v. Intoxicating Liq- Atl. 810. uors, 113 Mass. 13, 20. The elaim- 50. Kennedy v. Favor, 14 Gray ant attempts to distinguish that case (Mass.) 200. from the present by saying that in 51. Commonwealth v. Intoxicating that case the fact of the seizure of the §§530,537] SEARCH AND SEIZURE LAWS. 595 § 536. Notice of seizure. Where the statute specifies thai uotice musl issue to the alleged keeper of liquors seized within a certain number of hour-, the hours are to be computed exclusive of Sunday. 52 Notice to the agent in whose hands the liquors were when seized has been held suf- ficient. 68 And a recital in a notice to claimants thai the seizure was made under a warrant issued by a certain courl when in fact it was under a warrant issued by a special justice thereof, docs not invalidate the proceedings. 54 A claimant who has ap- peared and been admitted to prosecute his claim to the liquors seized cannot object, after a verdict of forfeiture to defects in the service of notice to him. 55 § 537. Claimants— effect of appearance— waiver of defects. One who appears in the proceedings as a claimant cannot object to defects in or omission of notice. 56 So in one of the earlier cases in Maine it was decided that where upon a warrant author- izing search for and seizure of intoxicating liquors as being kept and deposited for illegal sale, such liquors have been seized and libeled, a person who appears generally, and files his claim to the said liquors or a part of them, thereby waives any defeel in the bay water did not appear in the offi- not appear or notify the owner bo cers return upon the warrant, while that he could appear the consequences here the illegal seizure of the extra must fall upon 11k- latter. 12 gallons does appear upon the re- 54. Commonwealth v. Intoxicating turn. Bui thai is a distinction upon Liquors, 128 Mass. 72. a matter immaterial before us. It 55. Commonwealth v. Certain En- follows that the ((nut had jurisdic- toxicating Liquors, 13 Allen (V tion at least over the ale. beer, and 561; Commonwealth v. Certain [ntox- wine described in the warrant and icating Liquors, 6 Allen (Mass.) 596; taken by the officer, and that in re- See $ 537 herein as to elTect of fusing to dismiss the complain! and appearance. not to instruct the jury as requested r,,f - Campbell v. state (hid. S. C. by the complainant there was no er- 1909), 87 X. E. 212. ror." Per Hammond. J. A claimant of Intoxicating liquor r»2. Commonwealth v. Certain In- which has been Beized cannot dispute toxicating Liquors, !»7 Mn«. col. the regularity <>f the notice t.> ap- 53. Johnson v. Williams. 48 Vt. pear and oppose its forfeiture if he 565, holding that if such agent did has in fact received notice and has 596 SEARCH AND SEIZURE LAWS. [§ 537 monition and notice. 57 And where a claimant appears and has been heard in respect to the forfeiture of the liquor it has been decided that the statute will not be held unconstitutional as to him for some alleged defect therein as to notice to the owner. 58 So the fact that the citation contains no allegation as to the person enter- taining a criminal intent other than some person is not a ground of objection thereto especially after one has appeared, been heard, appealed the case and there pleaded in bar of the suit. 59 So where defendants appeared before the justice and had a trial without testing the sufficiency of the information or warrant and it was not assigned as error in the affidavit for the appeal an objection thereto first raised on appeal was held to be properly overruled. 00 And when the respondent in a lawful search and seizure process has submitted to arrest and has pleaded in court to the complaint, his subsequent objections to alleged deficiencies in the return of the officer upon the warrant are made too late. 61 Again where on a complaint for the forfeiture of intoxicating liquors, the person complained against does not appear as claimant, but consents on the record that the liquors may be destroyed without publication of notice, a writ of error brought by him to reverse the judgment will be dismissed on motion. 62 But while a general appearance may be a waiver as to matters of form it is not as to jurisdictional defects which when apparent upon the face of process render it absolutely void. 63 Where parties appear and claim liquors seized they become severally parties defendant, unless claiming a joint interest, and each has a separate right of appeal. 04 appeared generally. Commonwealth go. Santo v. State, 2 Iowa 165, 63 v. Intoxicating Liquor, 110 Moss. 182. Am. Dec. 487. r>7. State v. Bartlett, 47 Me. 396. 01 - State v. Connolly, 96 Me. 405, See also State v. Miller, 48 Me. 576. 52 Atl. 908. 62. Leslie v. Commonwealth, 107 Mass. 215. «:*• State v. Whalen, 85 Me. 469, 27 Atl. 348. ™. State v. Brennan's Liquors, 25 64 . gtate y Burrow » a Liquors, 37 58. State v. Intoxicating Liquor (Vt. 1909), 73 Atl. 586, citing State v. Intoxicating Liquor, 44 Vt. 208. Conn - 279 - Conn. 425. § 538] SEARCH AND SEIZURE LAWS. 597 § 538. Power and liability of officer serving — generally. A precept or process though voidable for irregularity or mistake, is a protection to the officer who serves it, if the magistral whom it was issued had jurisdiction of the subjeel matt So it is said in a recent case in Maine: " It is also a rule of law too well established to now require discussion thai for reasons founded on public policy, and in order to secure a prompt and effective service of legal process, the law protects its officers in the perform- ance of their duties, if tin re is no defect 'or want of jurisdiction apparent on the face of the writ or warrant under which they act. The officer is not bound to look beyond his warrant. He is not to exercise his judgment touching the validity of the process in point of law: but if it is in due form and is issued by a court or magistrate having jurisdiction of the case or subject matter he is to obey its commands. The defendant's warrant if properly exe- cuted was a complete justification." 66 And an officer is not liable for his official acts under a sufficient warrant, because the prosecu- tion fails by reason of the repeal of the law by virtue of which the warrant was issued. 07 But ir is only a precept which appears upon its face to have been issued by competent authority that affords a justification to the officer who executes it. 68 And if it appears that the magistrate has no jurisdiction or from the war- rant that there is an entire want of authority to issue it in the par- ticular case, and that no cause of forfeiture is disclosed, the officer <;•">• State v. McNally, 34 Me. 210. deputy" to serve may be executed by As to officer serving. — Where a a deputy of the sheriff as well as by warrant is served by the officer hav- a deputy of the marshal. State v. ing authority by law to serve Imi to McNally, 34 Me. 210, .">(■> Am. Dec. whom it is not directed it has been 650. held in Maine to be legally amenable As to fees of officers. — See Fay at any time before final judgment, v. Barker. 72 Yt. .">.".. -17 At 1. 180. the omission of Buch direction being 66. Kalloch v. Newbeii Ate. 1908), only a matter of form. State v. Hall, 72 Atl. 736. Per Spear, J. 7< Me. 37, 2 Atl. 546. 67. Gray v. Kimball, 42 Me. -200. A warrant which the statute an- <> s - Guptill v. Richardson, <'>2 Me. thorizes "any sheriff, city marshal or 2.">7. >98 SEARCH AND SEIZURE LAWS. [§ 539 acting under such warrant cannot be protected. 69 So an officer is not justified by a warrant which does not show that the justice took the testimony of witnesses as required by law. 70 § 539. Power of officer — as to place of search. The officer in making the search should confine himself to the place described in the warrant. 71 So a warrant to search the dwelling house of a person only authorizes the officer to search the house in which such person lives and if he searches a house owned by such person but hired and occupied by another he is guilty of trespass. 72 And a warrant to search " a certain building * * * and the outbuildings within the curtilage thereof " will not authorize a search of a building which is not in the same enclosure with the one specified. 73 And where the warrant commanded the officer to search a certain designated dwelling house it was held that he had no authority to search a barn. 74 And where there are sep- arate tenements in the same building a warrant to enter a building described as occupied by a certain person will not justify the officer in entering the tenement of any other person. 75 But in a case in 60. Thurston v. Adams, 41 Me. 419. 70. Jones v. Fletcher, 41 Me. 254. See State v. Staples, 37 Me. 228. 71. Jones v. Fletcher, 41 Me. 254. 72. McGlinehy v. Barrows, 41 Me. 74. 73. Commonwealth v. Certain In- toxicating Liquors, 140 Mass. 287, 3 x. i:. 4. 74. Jones v. Fletcher, 41 Me. 254. The court said: "It contains no di- rect authority to search the plaintiff's barn. The barn does not come within the terms used as descriptive of the place to be searched. If the words used in the warrant had been used in a deed of conveyance there is no evidence in the case tending to show that the barn which was broken into was so connected with the dwelling house then occupied by the plaintiff, that it could with legal propriety be regarded as passing to the grantee under such description." Per May, J. But a warrant to search a certain dwelling house and its appurtenances occupied by a defendant is held suffi- cient to authorize the search of a stable upon the same premises, though such stable may be used by tenants of the defendant in connection with him. State v. Woods, 68 Me. 409. 75. Commonwealth v. Newton, 123 Mass. 420. Examine Commonwealth v. Leddy, 105 Mass. 381, holding that where the house was described as occupied by A, an officer was held justified under the warrant in seizing a barrel of ale § 539] SEARCH AND SEIZURE LAWS. 599 Maine it is held thai on a warrant to search for Liquors in a dwelling house occupied by a certain person the officer is nol liable as a trespasser to other tenants of portions of the building for searching their premises before searching the rooms of the person named. 70 And a dwelling house, when it is shown thai intoxicating liquors are kept tin rein and sales made therein, may properly be regarded as a shop or place of public resorl which may be searched under a statute forbidding the issuance of a warrant to search a private dwelling unless it appears thai some part or all of it is used as a shop, store, hotel or place of public resort. 77 And where a warrant directed an officer to search for and seize liquors in a certain dwelling-house in which, when the warrant was issued, they were kept for sale and concealed, the officer was held justi- fied in taking them from a wagon in which they wen- being cur- ried to another place of concealment. 78 Again an officer under a warrant for the search of intoxicating liquors, is justified in forcibly breaking and opening the depot of a railroad in which the goods are stored, after the usual time for receiving and de- livering goods at the depot, if such forcible entry is necessary to the execution of the warrant. 79 And in Maine it has been decided that the offense is committed if the liquors are kept and deposited by the respondent for the purpose of illegal sale, whether so kept and found in the building indicated in the warranl or in another, and that though the warrant do not authorize the officer to search such other building and though he may be liable for doing so, this will be no defence to a proceeding for the forfeiture of the liquor and the punishment of the offender. 80 in such house in a room occupied by ~ s - State v. Whisky. .".I \\ II. 164. B. such barrel having a faucet which " !( - Androscoggin Railroad Co. v. passed through a partition into a Richards, 41 Me. 233. room occupied by A. 80. State v. Plunkett, 64 Me. 534, 76. Paquet v. Emery, 87 Me. 215, holding that where the liquors are ;>i! Atl. 881. found by the jury to have been in- T7. State v. Madison (S. D. 1000), tended for illegal sales and to have 122 N. W. 647. been kept by the respondent with 600 SEARCH AND SEIZURE LAWS. [§ 540 § 540. Liability of officer concluded. An unauthorized seizure of liquor by an officer is violation of law will entitle the owner of such liquors to damages. 81 Only those liquors can be condemned which are brought into court in a lawful manner and an officer cannot defend himself against a suit for illegally taking liquors, upon an insufficient warrant, by show- ing that they were subsequently libeled and the forfeiture of them declared, if these proceedings were initiated by such defective war- rant. 82 So where liquors other than those described in the warrant are seized the officer will be liable in an action therefor. 83 But in Arkansas it is decided that the fact that liquors were seized under an invalid search warrant does not affect the court's jurisdiction nor entitle the owners to recover the liquors or their value. 84 And it is no defense to the criminal prosecution of a person for keeping liquors for sale in violation of the law that the officer proceeded illegally in making the search and seizure. 85 Where the legislature has specified the cases in which a search and seizure may be made without a warrant such enumeration excludes other cases and an officer to justify himself for such procedure without a warrant must act within the provisions of the statute. 86 In the case of liq- uor which is in the custody of a receiver of a federal court an officer of a state who seizes such liquor without a warrant is held to be in contempt. 87 knowledge of the guilty purpose it is dered by the court to return the liq- no defense that they were seized upon uors to him. Walker v. Shook, 49 an illegal warrant or that the officer Iowa 264. exceeded his authority under it. 82. Guptill v. Richardson, 62 Me. 81. Gaillard v. Cantini, 22 Fed. 257. 493, 76 C. C. A. 699. 83 Arthur v. Flanders, 10 Gray In an action against an officer for /Mass ) 107 damages by the owner the latter must, it has been decided allege and prove that he owned and kept the liquors with lawful intent and not for the purpose of sale contrary to law and he is not relieved from the necessity 413. of making such allegation and proof 87. In re Swan, 150 U. S. 637, 14 by the fact that the officer was or- Sup. Ct. 225. 84. Ferguson v. Josey, 70 Ark. 94, 66 S. W. 345. 85. State v. McCann, 61 Me. 116. 86. Reid v. Adams, 2 Allen (Mass.) §S 541,542,543] SEARCH AND SEIZURE LAWS. 60] § 541. Duty of officer as to keeping of liquors. The officer making the seizure is only bound in keeping th<- liq- uors to use thai care and diligence which prudenl men use in the care of their own uoods. 88 And the officer Beizing them should hold them until the final order of the courl and in the absence of a statute should not allow them to be receipted for. And he should not permit them to be appraised as perishable property. 89 And the delivery by an officer, who has seized intoxicating liquors upon a search warrant of a part of them to a third person claimi] own them, the delivery being made with the assenl of the alleged keeper for sale, who appeared in court as claimant under proceed- ings for forfeiture, does not render the seizure of the remaining liq- uors illegal and void.'"' § 542. Acts of officer de facto. Where the act of an officer in seizing the liquors under a war- rant is that of an officer de facto, performed colore officii such act is valid so far as the public and third persons are concerned. 91 So where a constable under a warrant directed to him seized cer- tain liquors a plea in bar that although elected a constable he had never executed the bond required for the faithful performance of his duties was held insufficient. 92 § 543. Officer's returns. The officer's return may be read before the jury as exhibiting what is to be proved but not as any part of the proof to sustain the 88. Perkins v. Girds, 29 \"t. 343. :> :{ - State v. Howley, 65 Me. 100. 80. State v. Barrels of Liquor, 47 The court said: "Objection is made X. ii. 369. thai the officer's return on a Bearch !»<>• Commonwealth v. Intoxicating and seizure warrant was read to the Liquors, 113 Mass. 13. jury. It should be read before them, 91. State v. Brennan's Liquors, 25 in the opening as a part of the state- Conn. 27s. men! of the case, but should not be 92. State v. Brennan's Liquors, 25 regarded as evidence at all. The offi- Conn. 278. cer's return i- a part of the all 602 SEARCH AND SEIZURE LAWS. [§ 544 prosecution. 93 Where an officer in his return says: "By virtue of this warrant I have seized liquors " describing them particu- larly and in the same way in which the warrant describes them the ret urn will be good. He need not state that they are the same liquors as are described in the warrant as this is implied also by the statement that they were seized by virtue of the warrant. 94 An error in the officer's return as to the date when he seized the liquors does not affect the legality of the proceedings so as to permit the owner to maintain replevin for them against the officer. 95 § 544. Actions to recover liquors seized — replevin. Where liquor has been seized by an officer under search and seizure process it is a general rule that it cannot be taken from the officer making the seizure under a writ of replevin. 96 So it was decided in an early case that where liquors have been seized, by virtue of such a statute, under valid legal process, legally served, the owner of such liquors cannot maintain an action of replevin against the officers and take the liquors from him, while that pro- tion to be proved but is no part of the proof itself. It has the same effect in this process that a return in re- plrrin has in that process." Per Peters, J., citing State v. Stevens, 47 Me. 357; State v. Lang, 63 Me. 215. Officer's returns upon warrants un- der the search and seizure process are admissible in evidence as a part of the records of judgments and under a conviction in such a proceeding the presumption is that the respondent had in his possession all the liquors so described in the officer's return where nothing to the contrary ap- pears. State v. Lang, 63 Me. 215. 94. State v. Hall, 81 N. E. 34, 16 Atl. 320. 95. p v ing v. Nichols, 91 Me. 478, 40 Atl. 329. 96. Lemp v. Fullerton, 83 Iowa 192, 48 N. W. 1034, 13 L. R. A. 408, citing Funk v. Israel, 5 Iowa 438, 450, State v. Harris, 38 Iowa 242, 246 and fol- lowed in Anheuser-Busch Brewing Co. v. Fullerton, 83 Iowa 760, 50 N. W. 56; State v. Barrels of Liquor, 47 N. H. 369. Power of officer to consent to judgment.— The officer who made the seizure of liquors under proceedings for their forfeiture is held to have no authority to consent, in an action of replevin for the liquors, that judg- ment be entered therefor upon pay- ment of the costs. Fries & Co. v. Perch, 49 Iowa 351, holding that when it had been made to appear to the court that the agreement for the judgment in the replevin suit had been corruptly made, the judgment should have been set aside. s 544] SEARCH AND SEIZ1 RE LAWS. 603 cess is pending as liquors so seized and held are in the custody of the law." 7 So in Arkansas it has been decided thai though a circuit clerk is not authorized by law to issue a warrant for the seizure of liquors illegally kept in a prohibited district, ye1 after liquors have been seized under such illegal warrant and brought into court, the owners of it cannot complain in a replevin pro- ceedings of the illegality of the warrant. 98 Liquors seized by - process in accordance with the provisions of the law are in cus- todia legis. 00 So in a recent case in Kansas it is decided that re- plevin will not lie to recover property which has been seized under such a process it being declared that the proceeding is one in rem, that the property is in cvstodia legis, and that while the proceeding is pending in due and orderly course the owner of the property should not be allowed to intervene except to " answer the complaint made against such intoxicating liquors" as provided by statute. 1 But a demand for intoxicating liquors upon an officer who is holding them without legal authority, as where after seiz- ing without a warrant, he holds them for an unreasonable time be- fore making complaint and procuring a warrant, is sufficient evi- dence of a conversion to maintain trover. 2 And liquors so seized may be recovered by replevin where the statute so permits. In this connection in a recent case in Texas it is decided that if the stat- ute authorizing the search and seizure is held to be unconstitutional the bond give in connection with the proceedings falls with those 07. Allen v. Staples, 6 Gray Karr v. Stahl, 75 Kan. 387, B9 Pac. (Mass.) 491, citing Isley v. Stubbs, 5 669, and distinguishing In re Massey Mass. 293; Smith v. Huntington, 3 Petitioner. 56 Kan. 120, 42 Pac. 365, jj pp 78. which held thai an action of replevin 98. O'Neal v. Parker, 83 Ark. 133, would lie by Baying thai this de- 103 S. W. 165. cision was expressly based upon the 99. Rinf v. Nichols, 91 Me. 478, 40 absence of any provision in the nui- £t\ 309 sance statute for a hearing a< to the 1. Oreentree v. Wallace, 77 Kan. rights of property in the court where 149. 93 Pac. 598, citing State v. Me- the criminal action was pending. Manus, 65 Kan. 720, 70 Pac. 700; -• Weston v. Carr, 71 Me. 356. 604 SEARCH AND SEIZURE LAWS. [§ 545 provisions and is not enforceable. 3 In South Carolina it has been decided that an action of claim and delivery will lie to recover liq- uor seized by a state constable. 4 A statute prohibiting the mainte- nance of any action for the recovery of intoxicating liquors has been construed as limited in its application to liquors held in violation of law. 5 § 545. Nature of proceedings for forfeiture — proceeding in rem. In a recent case in Vermont it is said that such proceedings are proceedings in rem to fix the status of the property and therefore essentially civil and not criminal. 6 And a similar doctrine pre- vails in other jurisdictions. 7 In North Dakota, however, it has been decided, under the statute providing for the destruction of the liquors when it is shown that a nuisance was maintained, that the action is not one in rem, none being authorized by the statute, 3. Dupree v. State (Tex. S. C. 1909), 119 S. W. 301. The court said: " The legal effect of the replevin bond and liability upon it depend en- tirely on the statute providing for the seizure and must fall with those provisions. It cannot be considered a good contract under the common law. because it was not voluntarily entered into, but was extorted by an unlawful seizure, and for the further reason that there is no such liability as it expresses outside the statute it- self which we have held to be void in those parts attempting to create such a liability." Per Williams, J. 4. Moore v. Ewbanks, 66 S. C. 374, 44 S. E. 971. 5. Lord v. Chadbourne, 42 Me. 429, 66 Am. Dec. 290. 6. State v. Intoxicating Liquor (Vt. 1909), 73 Atl. 586. Such proceedings are in the nature of proceedings in rem and where they are regular and there is jurisdiction of the subject matter they fix the status of the liquor. Johnson v. Wil- liams, 48 Vt. 562. 7. Osborne v. State, 77 Ark. 439, 92 S. W. 406 ; State v. Burrow's Liq- uors, 37 Conn. 425 ; Campbell v. State (Ind. S. C. 1909), 87 N. E. 212; Greentree v. Wallace, 77 Kan. 149, 93 Pac. 578 ; State v. McManus, 65 Kan. 720, 70 Pac. 700. Statute as to construed.— A statute providing that all proceedings to obtain the forfeiture of any liquor under the acts shall be held to be pro- ceedings in rem and not criminal pro- ceedings has been held to apply to proceedings pending when the aet was passed and in such a case to author- ize a justice who was absent from town on the day appointed to issue a notice to the defendant, under a statute relating to civil suits, ap- pointing- another day for the trial and to proceed therewith on the day so appointed. Hine v. Belden, 27 Conn. 384. g -,,;] SEA1M II AND SEIZ1 RE LAW- 605 that the ultimate object of the statute lb to provide that no nuisance shall be maintained ; thai in case of the death of the defendant the cour1 loses jurisdiction to proceed and thai the title to the liquors passes to the defendant's heirs.* § 546. Same subject — whether civil or criminal. The proceeding for the condemnation and forfeiture or de- struction of liquors seized under search and Beizure process is I to he a criminal one in Iowa.'-' And in Massachusetts it is decided that the proceeding being of a criminal nature the allegation the complaint must be proved beyond a reasonable doubt. 10 And in Nebraska it is held that such an act and the procedure there- under being criminal in its nature it follows thai a provision in a bill of rights providing for a right of appeal in civil cases does not apply. 11 But in Vermont it is decided thai the proceeding i- a civil one, even though the finding involves something criminal, and that it is not necessary that the fact that the liquors were kepi unlawful sale should have been found beyond a reasonable doubt, a fair preponderance of evidence being sufficient. 1 - And a similar x- State v. McMaster, L3 N. D. uors seized is in excess of his civil 58, 99 X. W. 58. jurisdiction, state v. Arlen, 71 [owa !>• Stat.- v. Arlen, 71 [owa 216, 32 216, 32 X. W. 267. X. \V. -2t;7. citing stat.- v. Intoxicat- io. Commonwealth v. Certain In- ing Liquors, 40 Iowa 95; Santo v. toxi eating Liquors, 115 Mass. H"2. State, 2 [owa 165; Stat.' v. Bryan, 4 n- Sothman v. State. 66 Neb. 302, Leva 349. 92 X. W. 303. Being such an action the -late after 12. State v. Intoxicating Liquors. a trial of the case has resulted in (Vt. 1909), 7:: Ail. 586. favor of the owner of the liquors, it ,:{ - kirklan.l v. state. 72 Ark. 171. being found that they were not kept 7s S. \V. 770. for illegal sale, is nol entitled to an Right to appeal.— In Arkansas a appeal. State v. Intoxicating Liquors, proceeding in ran againsl liquors 40 Iowa 95. kepi for sale contrary to law in a Value of liqnors as affecting prohibition .list ri. t is held to be a jurisdiction.— The authority of a civil action from which an appeal justice of the peace being limited only may be taken by the state from a in a civil action so far as the amount final judgmenl of a justice of the involved is concerned is not affected peace. White V. State. SO Ark. 598 by the fact that the value of the liq- !>s S. W. 377. t ;i M ; SEARCH AND SEIZURE LAWS. [§§ 547,548 conclusion is reached in Arkansas, 13 and also seems to be favored in Indiana. 14 § 547. Proceedings for forfeiture and punishment of offender separate. Ordinarily the prosecution of the owner or keeper of the liquors and the proceedings for the forfeiture of the liquors are separate and independant. 15 So a statute in Indiana has been recently construed as providing for separate proceedings, the procedure to punish the offender being distinct from that in respect to the liq- uors, the latter proceeding being declared to be in the nature of a libel to procure the condemnation of the liquors. And under this statute where the defendant had been convicted a judgment order- ing the destruction of the liquors was reversed. 16 So the pro- ceedings for the condemnation and forfeiture of liquors which have been seized under such a statute may be had before the trial or conviction of the person charged with manufacturing or selling such liquors in violation of law. 17 And where intoxicating liquors have been seized a previous conviction of the owner for keeping such liquors is not a bar to a subsequent prosecution against the liquors themselves. 18 § 548. No defense that intent was that of agent of owner. The liquor, is dealt with under these statutes as the res which 14. Rose v. State, (Tnd. S. C. *«• Regadanz v. State, 171 Ind. 1909), 87 N. E. 103. 387, 86 N. E. 449. 15. Campbell v. State, 171 Ind. 17 « State v. McManus, 65 Kan. 720, 702, 87 N. E. 212. Regadanz v. 70 Pac. 700. Compare Darst v. Peo- State 171 Ind. 387, 86 N. E. 449. pie, 51 111. 286; 2 Am. Rep. 301. Libels of liquors and vessels seized 18- Sanders v. State, 2 Iowa 230, on search warrants although resulting holding it to be an error to refuse to from search and seizure process are charge the jury that if they found separate and distinct proceedings from the evidence that the owner of therefrom to determine whether the the liquors had previously been con- liquors are forfeit. State v. Intoxi- victed of keeping said liquors with eating Liquors, 80 Me. 91, 13 Atl. intent to sell, they must find for the 403. defendant. § 549] SEARCH AND SEIZ1 RE laws. ,;,i7 is itself liable to offend and consequently the owner cannot defeat a seizure and forfeiture on the ground thai the intent to sell them unlawfully was that of his agent where such agenl had immediate charge and control of them. 19 So in a proceeding againsl liquor alleged to have been kept in a prohibited district to be 3old trarv to law, it is no defense that it was l.i-ini; sold by an a§ of the claimant without the latter's knowledge and againsl his will, as the liquor is contraband and subject to be destroyed when it is being used contrary to law, no matter by whom. So in a case in which this question arose the court said: "It was wholly im- material as to who owned the liquor, or what his purpose concern- ing it was. The statute is directed against the liquor itself that may be kept in or shipped into any prohibited district to be sold contrary to law. When it is shown as it is here, that the liquor is being sold contrary to law, the nuisance exists, and it boots not the owner to say that it was being sold without his knowledge and against his will. The fact remains that the agent whom the owner entrusted with the liquor was selling it contrary to law. The proceeding is in rem." 20 § 549. Finding as presumptive evidence of unlawful keeping — statutes. The legislature may provide that a probable cause for a prose- cution shall be sufficient to overcome the presumption of innocence : and the finding of liquor by an officer as contemplated by a search and seizure statute furnishes evidence of a probable cause if not prima facie evidence of an unlawful intent to sell. 21 And a pro- vision " that proof of the finding of the liquor specified in the com- plaint, in the possession of the accused, in any place except hi* private dwelling house, or dependencies (or in such dwelling-house i!>- Commonwealth v. [ntoxicating 92 S. W. 406. Per Wood, J. Liquors. 163 Mass. 12, 39 X. E. 348. 21. Lincoln v. Smith. 27 Vt. 328. 20. Osborne v. Slate 77 Ark. 439, 22. State v. Cunningham, 25 Conn. 608 SEARCH AND SEIZURE LAWS. [§ 550 or dependencies, if the same be a tavern, public eating house, grocery, or other place of public resort) shall be received and acted upon by the court, as presumptive evidence, that such liq- uor was kept or held for sale, contrary to the provisions of the ad " has been held to be constitutional. 22 The statutory pre- sumption arising from evidence that liquor was found on certain premises, cannot be overcome by proof that the owner of the prem- ises, claiming to be a bailee and demanding restoration, did not thus keep it, but it must also be shown that no one kept it for that purpose. 23 § 550. Evidence generally. Although for the conviction of a defendant it should appear that the liquors seized were by him unlawfully deposited or kept for illegal sale yet to authorize the forfeiture of such liquors it need only be shown that they were kept with such intent, proof of the one by whom kept for such purpose not being necessary. 24 195. The court said, per Waite, C. J., " With what intent a person keeps in- toxicating liquors is always a ques- tion of fact for the jury, to be deter- mined upon a view of all the evidence. And in disposing of that question they are required by the statute to consider the keeping of the articles in the manner specified in the statute as presumptive evidence of an unlawful intent. But that evidence may be rebutted and controlled by the cir- cumstances. . . . With such evidence the jury may also take into considera- tion the presumption of the innocence of the accused. It has been said that the keeping of spirituous liquors is a lawful act, and being such, the legis- lature has no constitutional power to make it evidence of an unlawful act. Many acts at common law are lawful and yet the performance of them is prohibited by the legislature, in the legitimate exercise of their sovereign power. Even the sale of such liquors is not by the common law unlawful. It is only made so by statute. And if the legislature can constitutionally prohibit such sale, we see not why they may not properly prescribe what acts shall be considered as evidence of an intent to make the sale." See also Santo v. State, 2 Iowa 165, 03 Am. Dec. 487. 23. State v. Intoxicating Liquors. 109 Iowa, 145, 80 N. W. 230. 24. State v. Learned, 47 Me. 426. Examine State v. Robinson. 33 Me. 564, holding that legal proof that the liquors were kept for sale, by the owner or keeper of them is an essen- tial prerequisite to a decree of for- feiture (where a claimant appears) and to the imposition of a fine. Evidence insufficient to show kept for unlawful sale. See Common- wealth v. Intoxicating Liquors, 105 Mass. 595. 551] SEARCH AND SEIZURE LAWS. 609 Upon the question of intenl to unlawfully sell evidence of sales made both before and after the seizure is admissible. 26 And liq- uors which were seized in a search warrant are properly admis- sible in evidence upon the trial of a person charged with Belling liquors without a license even though the search and seizure were illegal. 20 So in a rcent case in Georgia it is declare. 1 that an officer who discovers a person keeping intoxicating liquors at his place of business may am-st him without a wan-ant, and may seize the liquor for the purpose of using it as evidence. 27 And in Minne- sota the intoxicating liquors and appliances usually used in the sale thereof, which were found on the premises of a defendant and seized by virtue of a search warrant have been held com- petent evidence on his trial on the charge of keeping a Mind pig. 28 In a liquor seizure case the proof must establish the liquor to have been seized in the town where alleged, as the offense is local, and it is a variance to prove that it was seized in a town other than that alleged. 29 § 551. Proceedings for forfeiture — judgment for. To render valid a judgment of forfeiture, under such an act, the parties interested in the subject of adjudication should be in- formed of the nature and cause of the charge upon which the adjudication is to be made, and afforded opportunity to answer and defend. 30 And though the person alleged in the complaint had. after being notified and appearing and claiming the liquors, I 26. State v. Mead's Liquors, 46 30. State v. Snow, 3 R. I. 64. Conn. 22. A claimant to seized liquors 26. State v. Madison (S. D. 1008), can only assert such right th 122 X. \V. 047. as is specifically Bel forth in his writ- 27. Jenkins, alias Jinks v. State, ten claim filed with the magistrate 4 C!a. App. 859, t svt forth in his (Jill SEARCH AND SEIZURE LAWS. [§ 551 defaulted it was held that this did not authorize the court to enter a judgment of forfeiture without trial and proof of the al- allegations of the complaint. 31 To justify an order for the de- struction or forfeiture of liquors under a statute providing there- for where kept for illegal sale it is not sufficient, to justify a judg- ment therefor to find that they were kept for the purpose of being sold but the finding should be that they were kept for the purpose of illegal sale. 32 And where the statute refers to intoxicating liquors kept for sale the jury to find in favor of condemnation must find both that the liquors were intoxicating and were kept for sale at the time they were seized. 33 And in Massachusetts it has been decided that proof that the liquors seized or some part thereof were owned or kept or deposited by the person charged in the com- plaint is essential to the rendering of a judgment of forfeiture. 34 In the case of the condemnation of liquor the state is only re- quired to make a prima facie case and consequently when there is no evidence in defense and there is admissible testimony tending to prove that the liquor was intended for an illegal sale, an ad- claim the person of whom, the place where, or the time when such liquors were purchased. State v. Intoxicat- ing Liquors, 69 Me. 524. In Mississippi it is decided that the justice's court before whom the pro- ceeding must be instituted has juris- diction to order the destruction of the liquors, without regard to amount, where no claimant appears, but that where a claimant appears the circuit court may acquire jurisdiction, but only as to the property claimed, if only a part is claimed. Holberg Mercantile Co. v. State (Miss. 1909), 48 So. 622. Statutory provision directory. A statutory provision that the officer making a seizAire " shall forthwith proceed to prosecute for the forfeiture thereof " is directory merely and will not be construed as meaning that the neglect of an officer to prosecute speedily will exempt liquors for for- feiture which are kept for sale in violation of law as the forfeiture depends upon the breach of the law and not upon the diligence of the officer. In re The Liquors of Hoxsie,. 15 R. I. 241, 3 Atl. 1. Time of trial to determine whether property should be forfeited under Kansas statute, see State v. Foren, 78 Kan. 654, 97 Pac. 791. 31. Commonwealth v. Intoxicating Liquors, 113 Mass. 23. 32. State v. Harris, 36 Iowa, 136. 33. State v. Certain Intoxicating Liquors, 92 Iowa 762, 60 N. W. 630. 34. Commonwealth v. Reed, 162 Mass. 215, 38 N. E. 364. § 552] SKAKCII AM) SKI/ILL LAWS. gjj judication of forfeiture by the court below is not reviewable. 88 After the adjudication the owner has no interest in the liquors and any subsequent misfeasance or misconduct in regard thereto can work no injury to him. 8fl What was libeled is ;i question for the court and must be determined by the libel and if an officer has another and different kind of liquor instead of it, such liquor has not been libeled. The decree can only be in respect to the liquor described in the libel. 37 § 552. Right to return of liquors seized. Where there is not a search, seizure and forfeiture statute and liquors have been seized for the purpose of evidence in connection with the arrest of the defendant he should be entitled to a return of the same when they have served the purpose for which they were seized. 38 And where liquors have been unlawfully seized the owner is entitled to a restoration. 39 So in case of a quashal of proceedings on a complaint for defects in matter of form the owner of liquors which have been seized is entitled to an order for their return. 40 In Nebraska under a statute there in force upon the rendering of a verdict finding the defendant guilty of keeping li- quors for unlawful sale, the court may order the destruction of the liquors seized. And if the jury find that only a part of the liq- uors were so kept they may so state in their verdict and the de- fendant will be entitled to an order that the liquors not so kept be turned over to him. 41 85. State t. Intoxicating Liquors, 39. state v. Intoxicating Liquors, 58 Vt, f,<)4, 4 Atl. 229. 98 Mo. 4ti4. 57 At 1. 798. 36. Johnson v. Perkins, 48 Vt. 572. 40. Commonwealth v. Certain In- 37. State v. Smith, 54 Me. 33. toxicating Liquors, 103 Mass. 4.14. 38. Padgett v. Sturgis, G Ga. App. 41. Riggs v . state (Neb. 1909), 121 544, 65 S. E. 352. N. \\ . 588. 612 PENALTIES. [§ 553 CHAPTEE XXI. PENALTIES. Sectiox 553. Statutes as to penalties — generally. 554. Ordinance as to penalties — generally. 555. Contesting validity of ordinance. 556. Sales to minors. 557. Sales by druggists. 558. Nature of proceeding. 559. Who may enforce. 560. Officials designated cannot delegate power. 561. For whose benefit recoverable. 562. Method of recovery prescribed by statute. 563. Recovery generally — proceeding for. 564. Recovery — extent of. 565. Persons liable for. 566. Liability of sureties on bond. 567. Complaint. 568. Answer. 569. Evidence — admissibility. 570. Evidence — burden of proof. 571. Defenses. 572. Where violation induced or procured by officials. § 553. Statutes as to penalties generally. In several states provisions have been made by statute for the recovery of penalties for violations of the liquor law or particular sections of the law. So a penalty imposed by the state for selling liquors without a license is within the powers conferred upon the legislature by the constitution of the state. 1 And a statute may impose a heavier penalty upon a person who has already been convicted for the same or a similar offense. 2 1- King v. Jacksonville, 3 111. 305. 2. State v. Woods, 68 Me. 409. §§ 554,555] penalties. 613 § 554. Ordinances as to penalties generally. A municipality under a proper delegation of power may require a seller of liquors to take out a license and provide penalties for failure to do so. :{ And where a municipality prohibits the sal.- of intoxicating liquors in the residence portion of a city, and provides that licenses previously issued shall be no defense in an action founded on the ordinance, the payment of the license fees to, and the retention thereof by the city do not estop the city from the enforcement of the same. 4 And an ordinance imposing a pen- alty for its violation is not unconstitutional because no provision is made for a jury trial. 5 But an ordinance is not a public or general law and in an action to recover a penalty provided for thereby it should be pleaded and proved. 6 And where an action of debt is brought for violation of an ordinance it is held necessary to show, in order to justify a recovery that the liquor was sold after the ordinance took effect. 7 § 555. Contesting validity of ordinance. In an action for a penalty the defendant may contest the validity of the ordinance imposing it. 8 So in such an action it is decided that an answer controverting the validity of the ordinance on the ground that it had not been published as required by the statute 3. Dentz v. City of Central, 1 Colo. objection applies equally to acts of 323. Sweet v. City of Wabash, 41 the legislature which impose penalties Ind. 7. for a like offense. King v. Jackson- Penalty not a tax.— A penalty ville, 3 111. 305. imposed by a municipal corporation, •»• shea v. City of Muncie, 14s [nd, for the sale of liquor without a 14, N. E. license is not a tax. An objection of *>• Hill v. Mayor of Dalton, 72 such a character is said in an early Ga. 4. See State v. Conlin, 27 Yt. case in Ilinois to be imaginary and 31 S. without foundation, and it was de- . McNulty v. Toof, 110 Ky. 202, ley v. Santbine, 49 Iowa, 650; State 75 S. W. 258. v. Ward, 75 Iowa 641, 36 N. W. 7(1.--: 11. Day v. Frank, 127 Mass. 497. Jamison v. Burton, 43 Iowa 282 ; 1-- Jamison v. Burton, 43 Iowa State v. Thompson, 74 Iowa 119, 282. See also Eoberge v. Burnham, 37 N. W. 104. 124 Mass. 277. 15 « Luton v. Circuit Judge of New- 13. McNeil v. Collinson, 128 Mass. aygo County, 69 Mich. 610, 37 N. W. 313. 701, holding that a provision for the § 558] PENALTIES. 615 the statute requires druggists to make returns of their sales within a certain time and provides a penalty for a failure to do so there must be a compliance therewith. 1 ' 1 And where such a report was erroneous in several particulars and an amendment to the answer was allowed stating such fact and that it was the result of mis- take on the part of the defendant it was held that the amendment should have been stricken out on motion because in an action of law at least, the penalty of the statute cannot be avoided on the ground of mistake. 17 Where an ordinance excepts from its operation sales made by druggists in good faith for medicinal purposes in an action to recover for a violation of the ordinance, the defendant if he relies upon such exception as a defense must bring himself within its provisions. 18 § 558. Nature of proceeding. The proceeding to recover a penalty is in the nature of a civil, and not a criminal suit. 19 So the action of debt provided for by the liquor law has been held to be in the nature of a civil action and not a criminal prosecution. 20 And in Kentucky it has been forfeiture of his business for a sec- X. J. L. 217. Compare In the M ond olTense was unconstitutional. of Sorenson, 29 Mich. 47r>. 16. State ex rel. Braden v. Cham- An action to recover a penalty berlin, 74 Iowa 266, 37 N. W. 326, for the breach of the condition citing State v. AfcEntee, OS Iowa of a bond is one upon a conl 382, 27 X. W. 265; Abbott v. Sar- obligation and not one "to recover a tori, "»7 Iowa 656, 11 X. \Y. 626. penalty or forfeiture imposed by 17. State ex rel. Braden v. Cham- statute" within the meaning of the berlin, 74 Iowa 266, 37 X. W. 326. New York Code. Lyman v. Gram- 18. Town of Flora v. Lee, 5 111. ercy Club. 28 App. Div (X. Y.) 30, App. 629. 50 X. Y. Supp. 1004. 19« Weiss-Chapman Dru£ Co. v. At common law when a penalty People, 30 Colo. 374, SO Pac. 77S : was incurred for a violation of a City of Canvelton \. Collins (Ind. S. by-law of a corporation it might be C. 1900), 88 N. E. 66: Harp v. Com- recovered by an action of debt or monwealth. 22 Ky. Law Rep. 1792, 61 assumpsit in any court of general S. W. 4(i7: McCracken v. State. 71 jurisdiction. Town of .Jacksonville v. Md. 150. 17 Atl. 932; Mitchell v. Block, 36 111. 507. State. 12 Neb. 538, 11 X. W. 848; May be either by a civil action Brophy v. City of Perth Amboy. 44 or by a complaint in criminal 616 PENALTIES. [§ 559 decided that an action by the commonwealth to recover penalties for violation of the liquor law prohibiting sales on Sunday, is civil both in form and nature and this, notwithstanding the de- fendant is entitled to certain privileges and immunities applicable to criminal proceedings not recognized in a civil suit. 21 The court said in this case: " But it is insisted for the commonwealth that because in civil suits for the enforcement of a penalty the defend- ant is entitled to certain privileges and immunities, such as free- dom from giving evidence against hmself, the benefits of the plea of not guilty, and the reasonable doubt instruction, that, therefore, the claim should not be paid. It is true that it has time and again been recognized that the defendant in a civil suit, wherein the en- forcement of a penalty is sought, is entitled to certain constitutional guaranties, but these immunities to the defendant cannot in any wise militate against the nature of the action, and that is the question we are now dealing with. The legislature clearly had the right to determine the nature of the action, subject to the immunities guaranteed by the constitution, and, where a penalty only is sought to be recovered, the action is civil and is tried ac- cording to the provisions of the civil code, although no answer other than the plea of ' not guilty ' is required of the defendant." 22 But in an early case in Pennsylvania the proceeding is held to be a criminal one in the name of the commonwealth, judgment to be for the penalty prescribed ; and not an action of debt in the name of an individual suing for the comonwealth and himself. 23 § 559. Who may enforce. Where by statute certain officials only are authorized to enforce form.— Packer Petitioner, 32 Me. 37. is given constitutes a misdemeanor 20. Strickland v. Bartow, 27 Mich. and is punishable as such or not. 68, holding that a statute prohibit- 21. James, Auditor v. Helm, 129 in;/ the imprisonment of " any females Ky. 323, 111 S. W. 335. in any civil action " applied to a 22. Per Lassing, J. capias issued under the liquor statute, 23. Specht v. Commonwealth, 24 whether the act for which the penalty Pa. St. 103. § 559] PENALTIES. 617 penalties the action cannol 1"- maintained by a private citizen. 24 And in the absence of a statute so allowing no art ion can be brought in behalf of the public except by the proper public a::ent.'-' r ' By statute in some cases the righl is given to any person to pn such an action in the name of a public official, the objed of such a statute being to confer the privilege of enforcing the law on other parties when the officer in whose name the action should be brought neglects and refuses to perform his duty. 28 In some cases the right is conferred upon any citizen of the county, 27 or upon a cit- izen for benefit of school fund, 28 or the action may be prosecuted by a town. 29 Under an early New York statute it was decided that actions to recover a penalty brought by overseers of the poor should be brought in the individual name of the officer folllowed by his official title, and not in the name of the office merely. 30 Under earlier decisions in Xew York the rule was to bring the action in the name of " the board of commissioners of excise " of the county and not to mention the names of the commissioners. 31 Where a plaintiff suing in an official character is superseded in office after the commencement of the term at which the cause is tried, but before the trial, there is no objection to a recovery by the plaintiffs upon the record. 32 24. Hess v. Appell, 62 How. Pr. 29. Inhabitants of New Gloucester (N. Y.) 313. Sutter v. Fauble, 25 v Bridgham, 8 Me. 60: Smith v. Vil- Hun. (ST. Y) 195. lage of Adrian, 1 Mich. 495. 25. Benalleck v. People, 31 Mich. 30. Horton v. Parsons, 37 Hun. 200. (X- Y.) 42. 26. Record v. Messenger, 8 Hun. 81. Pomroy v. Sperry, 16 How. N. Y.) 283. Prac. (N. Y.) 211. citing Board of 27. Church v. Higham, 44 Iowa Commissioners v. Doherty, 16 How. 482, holding that any citizen of the Prac. (N. Y.) 46; holding thai where county might institute an action the net inn was brought in the names for a forfeiture to the school fund of t ho commissioners the summons against one who sells intoxicating and pleadings might be amended by liquors to a person in the habit of striking out the names. becoming intoxicated. 82. Manchester v. Herrington, 10 2«. Stewart v. Waterloo Turn X. Y. 164, holding also that in Buch a Verein, 71 Iowa 226, 32 X. \V. 27"). case, a substitution of their buco r>0 Am. Rep. 786. in office for the officers who were 618 PENALTIES. [§ 560 § 560. Officials designated cannot delegate power. As we have already stated where the statute provides what officer or officers may maintain the action to recover a penalty, the action must be brought by them. And where such officers are clothed not with a mere naked authority but must exercise a discretion for the public good, they have no right to delegate such power to another. So in an early case in jSTew York it was decided that a board of excise could not delegate to an attorney authority to bring suits at his discretion but that action by him must be ratified by the board. 33 parties is optional with the parties authorized to apply therefor, and if they do not apply, the case may con- tinue to be prosecuted by or against the original parties. 33. Board of Excise v. Sackrider, 35 N. Y. 156. The court said, per Morgan, J., "And first I will say that there is no authority cited to sustain the proposition that the board of excise can devolve upon an agent or attorney the right to deter- mine what suits shall be brought against individuals for violation of the excise laws. The duty is by law cast upon the board of commissioners. The statute provides that the penal- ties for violation of the exercise laws shall be sued for and recovered in the name of the board of commissioners of excise; and in case of neglect for the period of ten days after complaint to them that any provision of the act has been violated, aecompaniel by reasonable proof of the same, any t person may prosecute in their name. 2 Laws 1857, pp. 414, 415, sees. 22 and 30. This action was not brought under the authority conferred upon .Johnson by the thirtieth section of the act; but by virtue of a general authority to bring such suits as he thought fit. It is not a case where the commissioners employ an attor- ney to bring particular suits, they themselves having first considered the question as to the propriety of the suits, but the attorney is left to act in the place of the board of commis- sioners and determine for them what suits shall be brought. The commis- sioners substitute the attorney in their place and stead, and undertake to depute to him all their authority, so far as they have authority, to de- termine any question as to the pro- priety of bringing suits against in- dividuals for violation of the excise laws. In my opinion the commis- sioners of excise are clothed with something more than a mere naked authority; they are intrusted with an office which requires discretion, and are clothed with a trust which is to be exercised for the public good. The act is one which, except as other- wise provided in section 30 is to be performed by the commissioners them- selves. The duties of the office in- volve a trust and confidence which they cannot assign to a stranger. See Story Agency, Sec. 5 et seq. 6 Bacon Abr. 37, title Officers and Offices (L.), Powell v. Tuttle, 3 N. Y. 396, State of New York v. City of Buffalo, 2 Hill 434. The difficulty is, §§ 561,562] PENALTIES. 6ig § 561. For whose benefit recoverable. The disposal of the moneys so received by the state or munici- pality is dependent upon the statutes or ordinances in force. 84 In some states it goes cither in part or in whole for the benefil of the school fund. 88 In other states such a penalty is recoverable for the benefit of the poor. 86 And in .-Mine cases the complainant is entitled to a part of the penalty or tine. 37 § 562. Method of recovery prescribed by statute. Where the statute prescribes the method by which the penalty may be enforced it can only be recovered in the manner provided. 88 In some jurisdiction the recovery can only be by a civil action, the offense being punishable by fine only and not imprisonment. 39 In some cases the statute provides that proceedings for the recovery of a penalty may be commenced by attachment. 40 Again the re-- covery of the penalty so provided may under the statutes in force be recovered by indictment. 41 A defendant may waive a right to have the proceeding to recover brought in a civil action as where the prosecution proceeds by indictment and he not only makes no that the commissioners here under- 86. Stewart v. Waterloo Turn took to farm out the business of Verein, 71 Iowa 226, 32 N. \V. 275, bringing suits to an attorney at law 60 Am. Rep. 786; Jefferson County without first determining what suit v. Reitz McGuirk, 56 Pa. St. 444. would he brought. It is known to be 30. Kingston v. Osterhoudt, 23 a profitable business to lawyers, and Hun. (N. Y. ) 66. if the practice pursued by the com- 37. Hull v. Welsh, 82 Iowa, 117, missioners in this case is to be toler- 47 X. W. 982; State v. Smith 64 ated, it may lead to great abuse. Me. 423; Ricker Petitioner, 32 Me. The law having cast the duty upon :!7 ; Webster v. Ball, 60 X. II. 7: the board of commisisoners of excise Pierce v. County of Hillsborough, 57 in such a case I do not think it can N. H. 324. be or should be deputed to third per- 38. The Druggist Cases, 85 Tenn. sons." 449, 3 S. W. 4.90. 34. State v. Noel, 73 Iowa 682, 35 •'»>• State v. Carter. 18 Mo. 481. X. \V. 922; State v. Smith, 64 Me. 40. State v. Johnson. 7J Miss. 896, 423; Frame v. State, 53 Ohio St. 17 So. 682. 311, 45 N. E. 5: Commonwealth v. 41. People v. Hart. 1 Mich. 467. McGuirk, 78 Pa. St. 298. 620 PENALTIES. [§§ 563, 5G4 objection thereto but further waives his right to object by an agreement. 42 § 563. Recovery generally — proceeding for. It is not essential that a fine should be imposed before a suit may be commenced for its recovery. 43 And an act may be both a violation of the conditions of a liquor dealer's bond and also a violation of an ordinance which will subject him to the penalty therefor. 44 Penalties given by different sections of an act may be sued for in one action. 45 And it has been decided that though upon the conviction of a person for a violation of the liquor law the court may properly impose the penalty affixed by law for such offense yet a civil action must be brought to recover the pecuniary part thereof. 46 § 564. Recovery — extent of. When a statute only provides for the recovery of a penalty for a violation of the law as for unlawful sales and does not provide for a penalty for each offense there can only be a recovery of one penalty up to the commencement of the suit. 47 And though the statute imposes two penalties, one for exposing for sale and one for selling it has been decided that for the act of selling there cannot be a recovery of both penalties, as the one single act will not be divided into two offenses. 48 42. State v. Uaruke, 48 Mo. 451, statute as to a penalty for selling followed in State v. Cronyn, 48 Mo. without a license provides that a re- 480. covery shall be a bar as to offenses 43. King v. Jacksonville, 3 111. 305. committed before such recovery, there 44. Whalin v. City of Macomb, can be a recovery in an action of but 70 111. 49. one penalty though several distinct 45. Ripley v. McCann, 34 Hun. (N. offenses are proved. V. i 112. Under a statute imposing a penalty 46. McCracken v. State, 71 Md. upon any one who shall sell without 150, 17 Atl. 032. a license, it has been decided that 47. Flora v. American Express Co., several distinct penalties may be re- 92 Miss. 66, 45 So. 149. covered in the same suit. But see See Washburn v. M'Inroy, 7 Johns. Deyo v. Rood, 3 Hill (N. Y.) 527, (X. Y.) 134, holding that where a holding that §§ 565,566] PENALTIES. (521 § 565. Persons liable for. There can be a recovery of the penalty only from the persi designated in the statute as liable therefor. 49 The action being in the nature of a tori in which one or more of the offending parties may be sued, the fact that the liquor was owned by three and that only two arc sued is no objection to a recovery. 60 Where defen- dants united in committing the offense for which the recovery of a penalty is sought, there will be a joint liability. 51 And where the circumstances in which corporations are placed is identical with those of natural persons expressly included in a statute they will be considered as persons and liable the same as a natural person for a penalty."' 2 But where a statute provides for a penalty for a sale to a minor by a " dramshop keeper, or any other person '* il has been held that a druggist is not liable for the penalty, the words " or any other person" being construed as applying to one repre- senting a dramshop keeper, when taken in connection with the resl of the statute which showed an intention to include dramshop keepers only. 53 § 566. Liability of sureties on bond. Where the bond given by the licensee is conditioned against a violation of any of the provisions of the statute and that the licensee "shall pay all damages which shall be recovered from him under and pursuant to the provisions of said acl " it has been decided that where a judgment has been recovered for a penalty, the surety on the bond is liable therefor. 54 But in a case in [owa 18. City of Brooklyn v. Toynbee, •">-• Stewart v. Waterloo Turn 31 Barb. (N. Y.) 282. Verein, 71 [owa 226, 32 X. \V. 275, •»!>• Bachman v. Brown, 57 Mo. 60 Aim. Rep. 786, < it iiilt Nales v. \j,p. 68. City of Muscat int\ 4 [owa, 202; 50. President v. Trustees of Jack- South Carolina R. Co. v. McDonald, sonville v. Eolland, 19 111. 271. 5 Ga. 531. .->«• Ball v. McKechine, 22 Barb. •" i:{ - Bachman v. Brown. 57 Mo. (N. Y.) 244: Ingersoll v. Skinner. 1 App. 68. Den. (N. Y.) 540. 54 * Day v. Frank. 127 Mass. 497. g22 PENALTIES. [§ no- it is decided that the sureties on a bond are not liable for a penalty for sales to minors. 55 § 567. Complaint. In an early case in Michigan it is determined that more partic- ularity is required in a declaration to recover a statutory penalty than in some other common law actions in which general counts allowed and that, in the absence of any statutory provision to the contrary it must set out with substantial certainty the facts to bring the defendant within the terms of the statute, leaving out no element of liability and misstating none, and it must aver the obligation to have arisen under a statute. 56 The declaration should, where the statutes prescribe a form contain the essential allegations so prescribed. 57 Where the statute contains several provisions the declaration should refer to the particular section for a violation of which it is sought to recover the penalty. 58 But where it is immaterial under the statute whether the violation was by a sale or gift or by the defendant or his agent a declaration is not demurrable because it alleges that the defendant by himself, his servant or agent did sell or give. 59 And though a declaration P5. Headington v. Smith, 113 57. Benalleck v. People, 31 Mich. Iowa 107, 84 N. W. 982. 200. no. Benalleck v. People, 31 Mich. Sufficiency of complaint to recover 200. penalty, see Weiss-Chapman Drug Co. Complaint under common law. v _ People, 39 Colo. 374, 89 Pae. 778. -In New York it has been decided i ndorseme nt on snmmons—A that in a complaint framed under ^^ requiring an imlorsement on the common law it is sufficient if it sets out all the facts necessary to the summons of the section of the act under which the penalty is the offense with a general reference ^.^ ^ begn heW t() be ^ to the statute. Kee v. McSweeney, cien% comp]ied with where the in . 15 Abb. N. C. (N. Y.) 229. dorsement refers to two sections by Names of persons to whom numberg Rip i e y v . McCann, 34 Hun. sales made. — The complaint should .-^ -y . ,,„ allege the names of the persons to ,,. , , ,, , , . 58. Benalleck v. People, 31 Mich, whom the sale was made or give * some reason or excuse for the omis- 200. sion. Kee v. McSweeney, 15 Abb. N. 50. Hawer v. Eldridge, 171 Mass. C. I N*. Y.) 229. 250, N. E. §§ 568,569] PENALTIES. 623 or complaint may be defective ye1 where the parties a«> to trial thereon without objection on account of such defects, a judgmenl in favor of the plaintiff will be good. 60 Again where a verdict has been recovered against a so-called club for Belling during prohibited hours it will not be set aside because the complainl did not negative an exception in the statute as to clubs, the exception not being absolute and it being necessary to avail itself of such ex- ception that the club should show it was organized in good faith and that it distributed liquors among its memb rs as provided by the act. 61 § 568. Answer. Where the answer admits the allegations of the complaint in an action for a penalty for the violation of an ordinance and - - forth the effect the defendant claims such ordinance if enforced will have upon his business it is bad.' 1 - And in an action to n c< the penalty for sale of liquor to a minor under a statute permitting one-half to go to the informer and one-half to the school fund, a demurrer to an answer was held to be properly sustained where the answer alleged that the action was not in good faith but for the purpose of blackmail. ''""' Where an ordinance is properly brought into a case by a complaint to recover a penalty for the violation thereof, such ordinance may be considered in determin- ing the sufficiency of the answer though not set out therein. 64 § 569. Evidence — admissibility. Tn the action to recover a penalty for selling without a lie evidence is admissable of declarations of the defendant that he had o»o. Hall v. McKechine, 22 Barb. 107, 84 X W. 98z, citing McQuade v. (N. V.) '244. Collins, 93 Iowa 22, 61 X. W. 213. 61. Cullinan v. Criterion Club. 39 64. Rowland v. city of Greencastle, Misc. R. (N. V.) -27(). X. Y. Supp. 157 [nd. 591, 82 X. E. 474. «;•_». city of Delphi v. Hamling 86. Inhabitants of Xew Gloucester (Ind. S. C. 1909), 89 X. E. 308. v. Bridgham, 28 Me. 60. o.i. Headington v. Smith, 113 Iowa 624 PENALTIES. [§ 570 kept and would keep spirituous liquors for sale. 65 And evidence is admissible that it was a matter of common report and public notoriety that intoxicating liquors were sold by the defendant. 66 And the fact that the defendant committed the act which renders him liable for the penalty may be established by circumstantial evidence. 67 § 570. Evidence — burden of proof. In an action to recover a penalty for selling liquors without a license it has been decided that plaintiff need not prove defendant had no license, which will be taken as true, unless disproved by defendant. 68 So in New York it has been decided that in an action to recover a penalty for selling without a license it is not necessary to prove the disqualification, the onus probandi being on the defen- dant. 69 But in another case in this state it is held that in an action to recover a penalty for a violation of a city ordinance, the burden of proof rests upon the city. 70 Where a sale to a desig- nated person is alleged the proof should show a sale to the person named by the defendant or his agent. 71 But in an action to recover 66. Cobleigh v. McBride, 45 Iowa 116. 67. Vallance v. Everts, 3 Barb. (N. Y.) 553, holding the fact that the de- fendant kept liquor in his grocery store, to sell, is competent evidence to show sales in violation of law in an action against him to recover the penalty. 68. Smith v. Village of Adrian, 1 Mich. 495. «!>• Potter v. Deyo, 19 Wend. (N. Y. ) 301, wherein the court said: " Whether the defendant had a license or not, was a matter pecu- liarly within his knowledge, and I think the onus probandi lay upon him. This is like an action to re- cover penalties under the game laws, where although the plaintiff must aver in pleading that the defendant was not qualified, it is enough for him to prove the killing of the game and it lies with the defendant to prove that he was qualified." Per Bronson, J. 70. City of Buffalo v. Smith, 8 Misc. R. (N. Y.) 348, 28 N. Y. Supp. 090, holding that where it was sought to recover a penalty for viola- tion of a city ordinance by a saloon- keeper for having musical perform- ances in his saloon without payment of the fee required to entitle him so to do, no presumption existed in favor of the city that the fee had not been paid. 71. Village of Princeville v. Hitchcock, 101 111. App. 588. §§ 571,572] PENALTIES. 625 a penalty it is not necessary that the ad should !"■ proved on the precise day alleged. 72 And where an ordinance declares places where certain liquors are sold to be auisances in an action to recover thereunder it need not be shown thai the liquors mentioned are intoxicating. 73 § 571. Defenses. When- a penalty is prescribed for sales to a prohibited class of persons, the fad that the one selling or giving the liquors did no1 knew that the person receiving them was of that class does not relieve him from liability. 74 And in an action to recover the penalty for an unlawful sale of liquor, it is no defense that the defendant made the sale as the servant of another person. 78 So Li is said in this connection, " It is not denied that the sale made by defendant was unlawful, but the defense set up is that he made it not on his own account, but merely as the servant of another per- son; in other words thai another person gave authority i<> the defendant to do an unlawful act. And no person had the right to give such authority, ami it can furnish to the defendant no protection." 7C Again in an early case in ISTew York it is decided that an indictment for selling spirituous liquors without a lio is no bar to an action for the penalty given by statute in such cases. 77 § 572. Where violation induced or procured by officials. Where a board of excise for the purpose of ascertaining an offen-e under the excise law. and bringing to conviction the offender employ and pay informers and witnesses to go upon his premises tz. [nhabitants of New Gloucester 75. Roberts v. O'Connor. 33 Me. v. Bridgham, '2S Me. 60. 4:n; 7:t. Laugel v. City of Bushnell, -«.. RoheTta v o'Conner, 33 Me. 197 111. -20, 64 X. E. 536, affirming „ , _ t i t» 1. ii no tii a mo 496« Per Howard, J. Laugel v. Bushnell, 96 111. App. 018. 74. Church v. Higluun, 44 Iowa " Blatchley v. MoBer, 15 Wend. 482. (N. V.) 215. 626 PENALTIES. [§ 572 and purchase and drink spirituous liquors thereon, the seller there- upon violates the law, and become liable to its penalty where he has- no license from the state to protect him. 78 And where the attorney of an incorporated town employed on his own account a private detective to procure evidence of the violation of the town ordi- onlinances as to the sale of liquors, and the detective gave to the prosecuting witness money, but without any direction or instruc- tion to buy whisky therewith, and with the money given him by the detective the witness purchased whisky from the defendant, it was heid that it was not a procurement of a violation of its ordinance by the town or its officers such as would estop the town to prosecute the defendant therefor. 79 But in an early case in Colorado, it has 78. Board of Commissioners of Ex- cise v. Baehus, 29 How. Proc. ( N. Y. ) 33. The court said in this case: "It is finally insisted by the counsel for the defendant, with great earnest- ness and apparent gravity, that the plaintiffs cannot recover because they are particeps criminis with the defendant in the violation of a penal statute. * * * But in order to shield a confessed guilty party from the consequences of his acts, and deprive the plaintiff of the remedy he seeks, it is essential that he be not only a ' particeps criminis ' but he must be in ' pari delicto,' with his adver- sary. This could not be averred of the plaintiffs in this suit, were they acting in a purely personal and pri- vate capacity, and seeking and ac- tually securing to themselves some individual benefit or advantage. * * * The drinking of the liquor upon the premises, or procuring a party to drink it, were neither of them acts evil in themselves, or condemned by the statute. * * * The plaintiffs are Miliject to no penalty but the defend- ant is, and the delictum not being equal, there is nothing to prevent the remedy provided by the statute from being enforced against them. * * * The plaintiffs are in effect a corporation, and they represent in their action in this case the sovereign power of the state engaged in admin- istering and enforcing its penal laws. The defendant is an alleged violator of the laws, whose detection and pun- ishment it is for the public interest to secure. The mode the plaintiffs adopt to compass this is precisely that which the state or any of its func- tionaries, or any municipal body re- sorts to when it offers a reward for the detection of crime, promises in- demnity to a co-adjutor or co-con- spirator; or presents pecuniary in- ducements to informers to testify by agreeing to share with them the spoils of victory obtained through their aid. This has never been dreamed of as a good plea in bar to the maintenance of an indictment, or any action whatever, brought in behalf of the public authorities to punish crime or collect penalties im- posed by law." Per Bacon, J. 7». People v. Chipman, 31 Colo. 90, 71 Pac. 1108. nil' j PENALTIES. 627 been decided that a city will not be permitted to recover a penalty for the violation of an ordinance where such violation is induced by the city through one of its officers.*". 80. Walton v. City of Canon City, 14 Colo. Api>. 352, 59 Pac. 840. The court said: "It is entirely evident from the testimony of this witness that as an officer of the city, and in behalf of the city, lie contrived a violation of its ordinance, and that his purpose in sending Knight to buy the beer, was to involve the de- fendant in a liability to the city. We have hold that public policy will not not permit a municipality to derive a profit from act-; which an- insti- gated by its officers." Per Thomson, J., citing Ford v. City of Denver. 10 Colo. App. 500, 51 Pac. 1015; People v. Braisted, 13 Colo. App. 532, 53 Pac. 796. 628 SALES BY SOCIAL CLUBS. CHAPTER XXII. SALES BY SOCIAL CLUBS. Section 573. Sales by social clubs — generally. 574. Alabama. 575. California. 576. Colorado. 577. District of Columbia. 578. Georgia. 579. Illinois. 580. Indiana. 581. Iowa. 582. Kansas. 583. Kentucky. 584. Louisiana. 585. Maine. 580. Maryland. 587. Massachusetts. 588. Michigan. 589. Minnesota. 590. Mississippi. 591. Missouri. 592. Montana. 593. Nebraska. 594. New Jersey. 595. New York. 596. North Carolina. 597. Oregon. 598. Pennsylvania. 599. South Carolina. 600. Tennessee. 601. Texas. 602. Virginia. 603. Washington. 604. West Virginia. §§ 573,574] SALES BY SOCIAL CLUBS. 629 Section C05. United States. 600. England. 007. Conclusion. § 573. Sales by special clubs— generally. One of the questions upon which there has been considerable discussion and concerning which the courts are not in harmony. U that of the right of clubs to sell or dispose of intoxicating liquors to their members. In order to place the question before the pro- fession properly, the author has in the following sections en- deavored to present the views taken by the courts in the leading cases upon this subject in the various states. § 574. Alabama. A transaction whereby an incorporated social club sells liquors to one of its members is a sale technically and within the meaning of a statute prohibiting the sale of vinous, spirituous or malt liquors without a license. 1 And where there was a general law prohibiting the sale of vinous, spirituous and malt liquors on a Sunday and the legislature granted a charter to a social club which contained a provision that the disposal of such liquors by the club to its members should not constitute a sale, it was decided thai the provision conferred a special privilege and that the charter, in so far as that part was concerned, was in violation of such a constitu- tional provision forbidding the granting of such privileges. 2 And likewise under such circumstances a social club will come within the operation of a statute forbidding the sale of such liquors on ;i Sunday."' And in a case in Alabama where the question of whether i. Beauvoir Club v. State 148 Ala. where it is said: "The evil Intended 043, 42 So. 1040, citing Martin's Case, to be corrected by the act in question 59 Ala. 34; Manassas' Case. 121 Ala. is the keeping open mi the Sabbath 501, 25 So. 028. day of barrooms or other places where 2. Beauvoir Club v. State, 148 Ala. liquors are furnished and drunk, and 043, 42 So. 1040. it can make no difference whether 3. Beauvoir Club v. State. 1 is Ala. few or many persona can obtain ad- 043, 42 So. 1040, L. R. A. mission and buy or obtain the liquors SALES BY SOCIAL CLUBS. [§ 575 the disposal of liquors by an agent of a club to none but members of the club was a sale within the meaning of the license laws, the court said : " There can be no question that the ownership was changed. The spirituous or vinous liquors were the property of the corporation. By the sale they became the property of the in- dividual, for a valuable consideration, paid by the individual mem- ber to the corporation aggregate." 4 But where power was con- ferred upon a city to pass ordinances " for the licensing and regu- lation of retail liquor dealers," and to assess and collect a tax from persons or corporations " trading or carrying on any business, trade or profession," and an ordinance was passed imposing a license tax and which included " clubs and social circles where liquors are sold to members, guests and visitors " it was declared that the business intended to be taxed by such enactments is one which is carried on for livelihood or profit and that the proof was insuffic- ient to bring a club within either the meaning of the ordinance or the charter power, the facts showing no disposition of liquors except to members. 5 § 575. California. In a recent case in California it is decided that an ordinance which imposes a license tax upon the " business " of selling liquors does not apply to bona fide social clubs which keep liquors for dis- tribution among their members, in the absence of a clear intent in such ordinance to so include them. The court said : " But in its transactions with its members in the carrying on of the club house looking simply to the giving to them such privileges in the property devoted to bona fide club purposes or they are all, in common, en- in the club, or whether other people Ann. 520, 19 So. 468; Mohrman's may or may not see them buy the liq- Case, 105 Ga. 709, 32 S. E. 143, 43 uor, or for what other purpose the L. R. A. 398, 70 Am. St. Rep. 74. place is being operated, if the fact 4. Martin v. State, 59 Ala. 34, remains that intoxicating liquors are Per Stone J. sold on the Sabbath day." Per Den- 5- Manassas Club v. Mobile, 121 son, J., citing State v. Gelpi, 48 La. Ala. 561, 25 So. 628. § 57G] SALES BY SOCIAL I I.I BS ,;;;] titled to under the constitution and rules of the club, it i- qoI en- gaged in business at all in the commercial or trade sens< narily understood. Such property is ben< ficially owned in common by the members in equal shares, and is devoted to their common use. So far as such property can be actually used equally by all the members, as in the case of reading rooms, sitting roo no special charge is made against any member for such use. All may actually use such things in common. But when in the exer- cise of the common privilege, one member appropriates to hte elusive use food or drinks, or a room for sleeping purposes, things that cannot be actually used in common by all the members, he pays therefor simply because it is the only fair and equitable way of apportioning the expense of the club among the members. . .. We shall not attempt to reconcile the cases. A full examination but demonstrates that there is ;i conflict in the views of the courts upon both the propositions we have discussed, viz. : the proper con- •lion of such an ordinance as the one before us, and assuming the correctness of our construction the question whether such trans- actions as we have detailed bring defendant within its operation. We believe our construction of the ordinance to be the only fair and reasonable construction of its various provisions; and upon the proposition that a bona fide social club, engaged in transac- tions of the kind above set forth is not engaged in the busines selling liquors within the meaning of an ordinance simply im- posing a tax upon such business, we are satisfied that the great weighl of authority is in accord with our conclusion.'' c § 576. Colorado. In Colorado in a recent case it is decided that a social club which dispenses intoxicating liquors to its members, at a price iixed by its managers, violates a local ordinance prohibiting the sale or «• Cuzner v. California Club. 155 Cal. 303, 100 Pac. 868. Per An- gellotti, J. 032 SALES BY SOCIAL CLUBS. [§ 577 other disposition of such liquors, even though such liquors are provided merely as incidental to the entertainment of the members of the club, the transaction being a sale. 7 This decision has been followed in a later case in the same state. 8 § 577. District of Columbia. In a case in the District of Columbia it was decided that a sale by a club to one of its members constituted a sale within the meaning of the statute and that the club was a " barroom " as de- fined therein and obligated to pay a license fee, it being declared that it was immaterial for what purpose it was formed, or that the sale was not made for the purpose of profit and was but a mere incident to the cultivation of social relations among members. 9 Thus it is said in one case in this connnection: 7. Manning v. Canon City, 45 Colo. 571. See City of Canon City v. Man- ning, 43 Colo. 144, 95 Pac. 537, 17 L. R. A. (N. S.) 272. In the case referred to in the text the authorities are reviewed at length and it was said : " But when the members of the club clothe the board of control with the authority to dis- pose of liquor to the club, they re- linquish their right to have the en- tire property of the club remain in- tact for joint use, occupancy and en- joyment of all the members, and make such board their agents to dispose of the liquor ; and in our opinion, such disposal by the board is a sale pure and simple. The transaction appears to contain all the elements of a sale. Such a transaction is but a contract between the parties to give and to pass rights of property for money which the buyer pays, or promises to pay, to the seller for the thing bought and sold. And it would re- quire * * * a refined reasoning to declare that the club is doing no more than distributing a common stock of liquor among its members, while the robust sense of the com- munity, not excluding the members themselves, know the transaction to be a sale." Per Steele, C. J. 8. Lloyd v. Canon City, (Colo. S. C. 1909), 103 Pac. 288. *>• Army and Navy Club v. Dis- trict of Columbia, 8 App. D. C. 544. In this case it appeared that the stat- ute provided in substance that no person should sell or keep for sale or traffic in, barter or exchange for goods in the District of Columbia any in- toxicating liquors except as herein after provided ; sales by club were not among those expressly excepted : a barroom was defined as any place where intoxicating liquors were sold to be drunk on the premises and the possession of such liquors for selling or disposing of to be drunk on the premises made the place a bar- room also for the purpose of the act ; a barroom license was re- quired for every hotel, tavern, bar- § 578] SALES BY SOCIAL CL1 BS. 633 •• Whether furnishing liquor to its members by a social club in the manner described constitutes a sale thereof within tin- meaning of that word as used generally in excise and prohibil laws, is a question which has undergone much discussion in the courts of the country, with an irreconcilable conflicl of decisioi a result. The most if not all of these have been brought to our at- tention through the industry of counsel and it seems thai the majority of them sustain the side of the negative. These decisi however, are not binding upon us, and their persuasive force is necessarily weakened by the fact that each of them must depend upon the construction that must be given a statute which open only within its own jurisdiction." 10 § 578. Georgia. The fact that only members are permitted in the rooms of a social club will not take such an organization out of the statute prohibiting the keeping open of tippling houses on the Sabbath day. 11 And the mere fact that the selling and drinking of intox- icating liquors was " only an incident and not the main obji of the incorporation of a social club, will make the place where such liquors are dispensed and drunk none the less a tippling-house within the meaning of a statute making penal the keeping open of such houses on the Sabbath day. 12 And a person who is the manager and also a member and officer of a social club and who exercises a general superintendence over the affairs of the club, in- eluding the bar from which the intoxicating drinks are furnished is amenable to such a statute. 13 room or other place where intoxicat- trict of Columbia, 8 App. D. C. f>44. ing liquors were sold by retail: and Per Mr. Justice Shepard. the excise board was authorized in "• Mohrman v. State, 105 Ga, 709, its discretion to issue a license to any 32 S. E. 1 13, 43 L. R. A. 398, 7" Am. duly incorporated club and to granl a St. Rep. 74. permit to such a club to sell intoxi- 1-. Mohrman v State. 10."> Ga. 709, eating liquors between auch hours as 32 S. E. 143, 43 L. R. A. 398, 7" might bo designated in the permit. Am. St. Rep. 74. 10. Armv and Xavv Club v. Dis- 634 SALES BY SOCIAL CLUBS. [§ 579 § 579. Illinois. In a recent case in Illinois it is decided that it is immaterial that liquors are sold by a corporate club to its members for a price sufficient only to pay their cost and the cost of serving them, or whether the organization and management of the club is in good faith or a mere shift or device to evade the statute, as in either case there is a sale within the meaning of the statute requiring a license. 14 And in a later case in Illinois it is held that a social club is a dramshop, within the statute, which defines a dramshop as a place where spirituous, vinous or malt liquors are retailed by less quantity than one gallon. 15 An early case in Illinois is also frequently referred to in this connection as supporting the un- qualified proposition that such a transaction is a sale within the 13. Mohrman v. State, 105 Ga. 709, 32 S. E. 143, 43 L. R. A. 398, 70 Am. St. Rep. 74. 14. People v. Law and Order Club, 203 111. 127, 67 N. E. 855, 62 L. R. A. 884. This case was decided in view of the Dramshop act (Hind's Stat. 1901, p. 750). This act in section 1 defines a dramshop to be " a place where spirituous or vinous or malt liquors are retailed by less quantity than one gallon," and declares these liquors to be intoxicating liquors within the meaning of the act. Sec- tion 2 provides that " whoever, not having a license to keep a dramshop, shall, by himself or another, either as principal, clerk or servant, directly or indirectly, sell any intoxicating liquor in any less quantity than one gallon * * * shall be fined." Section 7 provides that " all places where in- toxicating liquors are sold in viola- tion of this act, shall be taken, held and declared to be common nuisance, and all rooms, taverns, eating houses, bazaars, * * * or otlier places of pub- lic resort, where intoxicating liquors are sold in violation of this act, shall be deemed public nuisances." Sec- tion 13 provides that "the giving away of intoxicating liquors, or other shift or device to evade the provisions of this act, shall be held to be an un- lawful selling." Other sections pro- vide for the granting of licenses, etc. 15. South Shore Club v. People, 228 111. 75, 81 N. E. 805, 12 L. R. A. (N. S.) 519. 119 Am. St. Rep. 417. The court said: "The liquor belonged to the corporation as a legal entity, and no member owns any share of the liquor, as a tenant in common or otherwise. An association organized merely for social, literary, scientific or political purposes, although not in- corporated is not a partnership. A member of such an association has no individual right or interest in the property and owns no proportionate share of it, but only has a right to the joint use so long as he continues to be a member. Even if they were tenants in common, a transfer of a specific part of the property to one for a stipulated price would be a sale." Per Cartwright, J. SALES BY SOCIAL CLUBS. 635 meaning of the license law. This case, however, the facts of which we give in the note goes rather to 1 1 1 « - propositioD thai the means used constituted a mere shift or device to evade the law and should be classed with such cases. 10 § 580. Indiana. The Indiana case often referred to showed plainly a device to evade the law. In this ease it appeared that a club was formed to meet each Sunday; on each Saturday, and thai day only, a keg of beer was purchased, paid for and placed in the meeting room for the use of the members on Sunday; the members paid upon ad- mission a certain sum and also a monthly assessment to form the basis of a fund to pay expenses and for relief; on Sunday, at the meetings of the club, a member who desired a glass of beer could obtain it by delivering to the treasurer five cents which was placed in the treasury to keep up the funds, to pay expenses and for relief for sickness and other mishaps to members. By the statute of the state the sale of intoxicating liquors on Sunday was prohibited. The court reached the conclusion that the delivery of the glass of 16. Rickart v. People, 7!) 111. 85, . It appeared that in this ease an association had heen formed, the declared purpose of which was the promotion of "temperance, friendship and good feeling in the community at large." Among its fir^t acts the company rented the room defendant had formerly occupied, pur- chased of him the remaining stock of liquors he had on hand and set up and opened a saloon, without having first obtained a license to keep a dramshop. The business was con- ducted under the management of the defendant under the title of treasurer. who received all money, bought all the liquors and cigars and rendered ih> account to the members. Tickets, costing one dollar, and numbered from one to twenty were issued to persons on their becoming members, which tickets, each number on which rep- resented five cents, were presented at th» bar when a purchase was made. The court said in its opin ion: "All this a plainly a device, on the part of defendant and those who desire to patronize his bar, to avoid the provisions of the law. and to enable him to sell intoxicating liquors at retail, as he had form- erly done, without first obtaining a license to keep a dramshop. The purpose and ol>ject is so transparent. that the Bubjecl need not be seriously discussed. The whole thing 18 a sub- tle artifice, planned with a view to avoid the penalties pronounced against persons violating the law." Per Mr. Chief Justice Scott. G36 SALES BY SOCIAL CLUBS. [§§ 581,582 beer under such circumstances coupled with the payment by the member of five cents therefor to the treasurer constituted a sale within the meaning of the statute. 17 § 581. Iowa. In a case in Iowa where it appeared that a club was organized to supply its members with liquor to be used as a beverage, and that the liquors were sold by defendant in his own house to members who purchased and presented tickets, the defendant purporting to act merely as an agent or employee of the club, it was decided that the defendant was guilty of violating the prohibitory law, it being declared that he had resorted to a device, craftily planned and boldly executed for the purpose of violating the law and that he attempted to make the violation respectable by getting up a social organization to support him. 18 § 582. Kansas. In Kansas it has been decided that where an incorporated asso- ciation purchases beer outside the state and brings it into the state, and then sells chips to its members, each chip representing a drink or glass of beer, and then furnishes a drink or glass of beer for each chip returned by a member, and the beer is drank as a beverage, and neither the association nor any one of its members has any permit to sell intoxicating liquors, the member of the association who sells these chips, the member who delivers the beer on the return of the chips and the president of the association who is present at the time and knows of these things may be prosecuted, convicted and punished for selling liquor in violation of the law, it being also immaterial that the association was organized prior to the passage of the prohibitory law, as such disposal violated likewise the license law in force prior to the passage of such act. 19 17. Marmont v. State, 48 Ind. 21. 21 Pac. 204, 3 L. K. A. f>87. The 18. State v. Mercer, 32 Iowa 405. court declared: "The beer was not !»• State v. Horacek, 41 Kan. 87, distributed to or among the members §§583,584] SALES Bl SOCIAL CLUBS. 637 The gratuitous distribution, however, of liquor, obtained in a law- ful manner by an association among its members, or the giving away of it to a person is declared not to be an offense under the prohibitory or license law.-" In this state, by an ac1 passed in L881, the keeping of :i place by a club for the sale or distribution of liquors amongst its members, was forbidden and this act was not repealed by the act of 1901. 21 § 583. Kentucky. In Kentucky it has been decided that where a social club pur- chases liquor in large quantities and furnishes it to its men; 1 no member being permitted to drink or consume any of it without paying directly out of his individual means to the club the price per drink or bottle charged therefor, there is a selling by retail within the meaning of a city ordinance requiring every clubdiouse and club-room wherein liquors are sold by retail to pay a license. 22 § 584. Louisiana. In Louisiana it has been decided where a club disposes of liquor to its members, each member paying for what he receive-, that even though it may not be a sale, it is included within the terms of the statute requiring licenses for places where "sales, gifts or disposition" of liquor takes place. 23 And it has been decided in equal shares, nor was it distributed 1909), 101 Pac. 404 construing Laws to them at all except as they pur- 1881, p. 242, g 10, Gen. St. 1901, § chased it. Under their rules some 2466, and Laws 1901, p. 416; C. 232, of the members might gel all the beer § 1. Gen. St. 1901, § 2493. ami the others none. Those purchas- '-'-• Kentucky Club v. City of ing the chips would gel beer while Louisville, 92 Ky. 309, 17 s. \v. the others would not get any. The 743. In this case it appeared the sale of the chips was really a sale of ordinance was passed in the exercise the beer, as the chips represented the of power expressly conferred to license beer and nothing else." Per Valen- club-rooms or any other establishment tine, J. wherein liquors were Bold. *>• State v. Horacek, 41 Kan. 87, -•"<• State v. Boston & Pickwick 21 Pac. 204, 3 L. R. A. 687. Club, 15 La. Ann. 5S5, 12 So. 21. Ex part, Manning (Kan. 20 L. R. A. 185. g38 SALES BY SOCIAL CLUBS. [§§ 585,586 that a sale of intoxicants by a club to its members, even though not made for any profit, is such a sale as brings the bar within the operation of a statute requiring that licensed stores, shops and saloons shall close on Sunday. 24 § 585. Maine. The disposal of liquor by a club among its members is con- sidered in a recent case in Maine, which was decided under a statute as to nuisances. The statute provided that : " All places used ... for the illegal sale or keeping of intoxicating liquors, and all houses, shops or places where intoxicating liquors are sold for tippling purposes, and all places of resort where intoxicating liquors are kept, sold, given away, drunk or dispensed in any manner not provided for by law, are common nuisances." The prosecution was against a member of a club for disposing of liquor to the members. It appeared that the club was regularly organ- ized, having a constitution and by-laws and from the dues assessed to the members, sick and death benefits were paid. The premises consisted of a lodge room, billiard room and bar room. A member of the society acted as janitor and keeper of the bar room each in turn for two weeks and without compensation. The conclusion was reached in this case that under the statute any place of resort where liquors are illegally kept is a nuisance, that any place of resort where liquors are given away is a nuisance and that it made no difference whether the men were joined as a club and chipped in in advance and bought the liquor, if when it came there it was drunk on the premises resorted to. 25 § 586. Maryland. In an early case in Maryland in which this question arose, it was declared that the license laws which forbid the sale or barter of 24. State v. Gelpi, 48 La. Ann. 520, ^r,. state v. Kapicsky (Me. 1909), 19 So. 468. 73 Atl. 830. < 586] SALES BY SOCIAL CLUBS. »,:;«., liquors without a license had never been construed as applicable to social clubs where Liquors were procured by the club for the use of the members who obtained the same from the club through the steward by calling for them and paying a price fixed by the regulations of the corporation which (nice was nol for the pur] of making any profit, but merely to cover outlay of purchase and expense of keeping and serving. And the court decided thai such club did not require a license as the transaction was not a -;i!<- within the meaning of the license laws. 26 In a later case in this state under a statute providing that it shall not be lawful for " any person or persons, house, corporation, company or association to sell, directly or indirectly, at any place intoxicating liquor" and further providing " that no person or persons, company, cor- poration or association shall deposit or have in his, her, their or its possession " any such liquors with intent to sell or give away the same, it was decided that a club in keeping such liquor at its rooms with the intent of disposing of the same to its members either by sale or gift was acting in violation of the law. 27 And subsequently in this state in a case which referred to the case "t" Chesapeake Club v. State, 28 and declared that as it resulted in an affirmance by a divided court of the ruling of the lower court, it might not furnish a binding precedent or authority for the decision to be made in the case before the court, vet that after a careful 26. Seim v. State, 55 Mich. 506, forbid the sale or barter of spiritu- 39 Am. Rep. 496. In this case the ous or fermented liquors without a prosecution was against a tint) for license. selling beer on Sunday to its mem- -'• Chesapeake Club v. Stale 63 bers in violation of an act providing Md. 446, affirming by a divided court that "no person in tbis state shall the ruling of the court below and dis- sell, dispose of, or barter, or if a tinguishing Seim v. State. .">:. Md. dealer in any one or more of the ar- 566, •'!'■> Am. lop. 196, and declaring tides of merchandise in this section that the statute being construed in mentioned, shall give away on the the liter ease was evidently framed Sabbath Day. commonly called Sun- in such terms as to avoid the effect day * * * spirituous or fermented liq- of the earlier decision. uors. cordials, lager beer, wine, cider 28. t;:: Md. 446. or any other goods." The license law-, 04 SALES BY SOCIAL CLUBS. [§ 587 examination and comparison of all the decisions upon the subject kt we are decidedly of opinion that the furnishing of liquors by the club to its members for a price fixed by regulation, and paid by the member upon receipt of the liquor, constitutes a sale, and is, therefore, in violation of the statute," and the fact that the sales were made without actual profit to the club was declared to be immaterial. 29 And where by statute social clubs are brought within the provisions of the charter of a city in respect to the granting of licenses they are subject to a charter provision that no license to sell intoxicating liquor on Sunday shall be granted to any person and this without regard to the fact whether or not such disposal of liquors to the members is not for profit. 30 § 587. Massachusetts. In a case in Massachusetts the court said : " A place would be ii!». State v. Easton Social Club, 73 Md. 97, 20 Atl. 783, 10 L. R. A. 64. The court said : " The parties are competent to contract one with the other. — there being no principle to forbid a member of a corporation from contracting with or becoming a purchaser of property from the cor- porate body as a legal entity. And that being so, the course of dealing as between the corporation, and its individual members, as stated in the answers, present all the elements of an executed contract. The corpora- tion being the owner of the liquor, through its appointed agent, delivers it to the member of the corporation on his request and receives a fixed compensation in money therefor. The property in the liquor passes to and becomes vested in the individual mem- ber, and the money paid is received for and becomes the property of the corporation. Nothing more is or can be required to constitute a completed sale. And such being the case why should this court be astute and in- dulge questionable refinements in or- der to relieve these corporations of the just consequences of their acts? By holding that the supply of liquor by the club to its members, in the manner admitted by the answers, does not constitute a sale within the mean- ing of the Local Option Law of Tal- bot County, we should certainly af- ford impunity to gross violations of the spirit and intent of the statute and thereby open the door to all the evils intended to be suppressed by it; and that done by simply allowing a combination of individuals to do what individuals without combination could not do without incurring the penalties of the law." The court held that the word " person " as used in the statute included artificial as well as natural persons. The case of Seim v. State, 55 Md. 566, 39 Am. Rep. 496 was also again distinguished from the one before the court. •to. state v. Maryland Club, 105 Md. 585, 66 Atl. 667. g 587] SALES i:v social CLUBS. , ;1 1 equally a nuisance under the statute if used by a club either to sell intoxicating liquors to its members, or to distribute anion-. members intoxicating liquors owned by them in common, or I i procure for and dispense to its members intoxicating Liquor which was bough* for and belonged to them individually. "' And it v> i that there could be no room for any other conclusion as statute provided thai " All buildings or places used by club- for the purpose of selling, distributing, or dispensing intoxicating liqi to their members or others shall be deemed common nuisances." ::1 In an earlier case in Massachusetts where the steward was prosecuted for selling liquors without a license, the sale being to a member of the club, the judge instructed the jury on the request of the defendant as follows: " 1. If this was a bona fide club and liquors owned in common by the members, and the members on receiving liquor gave in return money instead of checks, it would not constitute a sale within the meaning of the statute. 2. If two or more persons unite in buying intoxicating liquor, and then dis- tribute it among themselves, they do not violate the statute, and the intent with which they do this is immaterial. If they intend in this manner to obtain intoxicating liquor to drink without thereby subjecting any person to the penalties of the statute t hey still act with impunity." The judge however added this qualifica- tion to the second instruction: " It is not a violation of the law if they unite in good faith in dividing it. If two persons buy a gallon of liquor and divide it among themselves, they act with im- punity ; but if this is a mere device to cheat the government out of its license fee, and prevent the due execution of law, it is not a protection, and the defendant does not act with impunity." The defendant, who had objected to this further instruction, was found guilty and appealed. It was, however, decided that he had no ground of exception. The evidence in this case tended to show that each person on admission to the club paid the treasurer one 31. Commonwealth v. Baker, l. r >2 Mass. 337, 25 X. E. 718. 642 SALES BY SOCIAL CLUBS. [§ 587 dollar and received a card certifying his membership; that the money so obtained was used in purchasing liquors in the name of the club ; that the members were furnished checks for five and ten cents each to any amount upon paying the treasurer or steward the price for the same; that none but members were admitted to the club or could obtain drinks there and that at no time was liquor paid for when served other than by checks. The prosecution con- tended that in the case in question money was given in payment for the drinks, and it was also the contention of the state that the club was organized to defraud the state of the license fee, that the books and records were not genuine and were not the evidence of a genuine organization and were founded in fraud and deceit and were gotten up to cover illegal acts and transactions by defend- ant. And the court on appeal said that an important, if not the principal question of the case, was whether this was a real and genuine arrangement for the division of liquor among the owners of it or was a mere pretence and device to cover up unlicensed sales. 32 In an earlier case in Massachusetts, however, where the conditions as to membership and obtaining of liquor were practically the same as in Commonwealth v. Ewig, 33 the court on appeal declared that the ruling and instructions seemed to assume that it was a bona fide club, that the liquors were owned in common by the mem- bers, that they were furnished only to members ; that they were kept by defendant as one of the members and as steward, and that the court on appeal could not assume that any person could join the association at his pleasure, and it was decided that a disposal by the defendant to a member of liquor was not a sale and that it was not competent for the jury to find him guilty of keeping in- toxicating liquors with intent to sell the same. 34 Again in an earlier case in this state it was declared that it was a question of 32. Commonwealth v. Ewig, 145 34. Commonwealth v. Pomphret, Mass. 119, 13 N. E. 305. 137 Mass. 564, 50 Am. Rep. 340. 33. 145 Mass. 119, 13 N. E. 365. §§ 588,589] BALES ETC SOCIAL CLUBS. 043 fact for the jury whether an arrangement for the formation of a club, the purchase of liquors with their joint funds ami their dis- tribution among the members by the agency of the defendant, a member of the club, was a mere evasion of the law or not and that the trial court was not warranted in assuming that it was such an evasion or that a distribution of liquors would be a sale. 35 § 588. Michigan. In Michigan it has been held that the object of a law requiring that licenses should be obtained by retail dealers of liquors, defining such dealers as all who sold by the drink and in quantities of three gallons or less and further providing that all saloons, restaurants, bars in taverns or elsewhere, and all other places except drug stores where such liquors were sold either at wholesale or retail shoidd be closed on the first day of the week, was to tax the business of liquor selling wherever found, or by whom carried on and reached a club-house or a private house as well as a saloon or tavern and included all persons engaged in such business. 36 § 589. Minnesota. In a recent case in Minnesota, which the court said they believed was the first case in the history of this state in which the question had arisen, the subject is considered at length and a large number of the cases reviewed and the conclusion is reached that a social organization or club chartered under the laws of the state is a " person " within the license laws of the state and that the distribu- tion of liquors in less quantities than five gallons by such a club to its members constitutes a sale within the meaning of such law and is prohibited unless protected by license. 37 After reviewing the cases the court said: " It will thus be seen that the cases relied 3B. Commonwealth t. Smith, 102 41 X. W. 908, 2 L. R. A. 494. Mass. 144. •* 7 - State v. Minnesota Club (Minn. 36. People t. Soule, 74 Mich. 250, 1909). 119 N. W. 494. 64 4 SALES BY SOCIAL CLUBS. .[§ 590 upon by respondent either follow the English rule that the distribu- tion of intoxicating liquors to club members does not constitute a sale, for the reason that the members are the joint owners of the property and are merely distributing to themselves property which they already own, or are based upon peculiar statutes which fairly indicate that the legislature only intended to make the license law apply to the retail of intoxicating liquors, where it was carried on as a business for profit as a means of livelihood. Whatever may be the proper application of the statute to voluntary associations where property is held in common, the English rule has no ap- plication where the organization is a legally constituted corpora- tion. The statute makes no express exception in favor of such cor- porations, and, considering the purpose sought to be accomplished, in restraining the distribution of intoxicating liquors, as expressed in the plain terms of our statute, we fail to discover any implied exceptions." 38 § 590. Mississippi. In Mississippi it has been declared as follows : " We unhesitat- ingly adopt as sound the views of those courts which have held that such a device as was resorted to by appellant in disposing of vinous and spirituous liquor was a violation of the law against unlicensed retailing. ... It must be so unless an association of persons may lawfully do what none of the individuals could, and it would be a reproach to the law if this were so." 39 In a later case where evidence showed that the defendant operated under the name of a club, that tickets were issued which represented the amount of beer purchased, that such tickets were paid for in ad- vance and punched as the beer was called for and consumed by the holder of the ticket, and that a person only remained a member of 38. Per Lewis, J. not for profit, to members of a social 39. Nogales Club v. State, 69 Miss. club. 218, 10 So. 574, so holding as to sales, §§ 591,592] SALES BY SOCIAL CLUBS. 545 the club so long as his ticket lasted, it was held that the evidence showed that the defendant was openly and habitually engaged in an attempt to evade the law and that such Bales were illegal. 40 § 591. Missouri. Where a club is used as a mere scheme to sell liquor in de- fiance of the law, the prime object being a mere evasion of the law, it is within the meaning of the liquor laws. 41 But the word "person " as used in a dramshop act has been held not to include an incorporated club, organized and conducted in good faith as a social club and it is not required to take out a license as is required by such act. 42 " Applying the test that commends itself to our best judgment, in view of the conflict in the decisions, we think that where a social club as in this case is clearly a bona fide organiza- tion, with a limited membership, and admission into which cannot be obtained by any person at his pleasure, and its property is ac- tually owned in common by its members, a distribution of wine or liquors belonging to such club, among its several members, is no1 a sale of liquor by retail or in original packages within the mean- ing and purview of our dramshop act, although technically the act •Iocs amount to a sale for some purposes." 43 The bona fides of a club is in each case a question for the court or the jury under proper instructions of the court. 44 § 592. Montana. In this state it has been decided that where n club is organized and conducted as a bona fide social club, and liquor is distributed 40. Harper v. state. 85 Miss. 338, »:t. State v. St. Louis Club, 125 37 So. 956. Mo. 308, 28 S. W. 604, 26 !.. I:. A. 41. State v. st. Louis Club, 125 Mo. 573. Per Garrett, P. J. 308, 28 S. W. 604, 26 L. R. A. 573. 14. State v. St. Louis Club, 125 42. State v. St. Louis Club, 125 Mo. Mo. 308, 28 S. W. 604, 26 L. K. A. 308, 28 S. W. 604, 26 L. R. A. 573. 573. 646 SALES BY SOCIAL CLUBS. [§§ 593,594,505 only to the members of the club there is not a sale within the mean- ing of the license laws and the club is not liable for the tax. 45 § 593. Nebraska. If the club is organized and conducted as a mere cover for illicit traffic in intoxicating liquors then there is a violation of the law as to licenses. 46 § 594. New Jersey. In New Jersey it has also been held that a club which disposes of liquors to its members though not done for the purpose of evad- ing the law or of making a profit out of the members comes within the operation of an ordinance imposing a penalty for selling liquor at retail without a license. The court declared in this case that, " it is wholly immaterial and not a legitimate subject of inquiry whether an intention to violate or evade the law was present or not. Intent constitutes no part of the offense ; the simple question is presented, whether the act expressly inhibited has been done. If so, the presumption of wrongful intent is absolute and cannot be controverted. 47 § 595. New York. Where a person acting as agent or steward of an unincorporated asociation formed for social purposes, upon the request of a mem- ber thereof, delivers to a person not a member liquors belonging to the association and receives pay therefor, although from the member the transaction constitutes a sale within the meaning of the excise law and it appearing that neither the steward nor the association had obtained a license therefor, such a sale is a viola- tion of its provisions. 48 This case, 49 was distinguished in a later 46. Burden v. Montuna Chib, 10 48. People v. Andrews, 115 N. Y. Mont. 330, 25 Pac. 1042, 24 Am. St. 427, 22 N. E. 358, L. II. A. 128, re- Rep. 27, 11 L. R. A. 503. versing People v. Andrews, 50 Hun. »<;. Sothman v. State, 66 Neb. 302, 591, 3 N. Y. Supp. 508. 92 N. W. 303. 49. People v. Andrews, 115 N. Y. 47. Newark v. Essex Club* 53 N. 427, 22 N. E. 358, 6 L. R. A. 128. J. L. 99, 20 Atl. 769. § 595] SALES BY SOCIAL CLUBS. CI7 case in this state in which the court declared as follows: " We are aware that it has been generally understood that this court in that case intended to hold chilis liable under the Btatute, and that the general terms in several instances have subsequently so held, i ing their decisions upon that case. 50 But such was not the inten- tion of this court and to that extent its determination has been mis- understood. The question here presented must therefore, be r< garded as undecided and still open for consideration." 51 In this state it has been decided that the furnishing of liquors to its mem- bers, upon their written orders, at a price designed to cover the purchase price and disbursements of serving, by a bona fide social club, regularly organized under the statute for a legitimate pur- pose, to which the furnishing of liquors to its members is merely in- cidental, and having a limited and selected membership, does not constitute a sale within the meaning of a statute making it a mis- demeanor to sell without a license. 52 And in another case in Xew York it is declared that " where it appears plainly that the cor- poration exists solely for the purpose of carrying on an establish- ment for selling intoxicating liquors to anyone who chooses to buy them, the court is not bound to stop with the fact of its organiza- tion, but may examine into the whole case, and if it concludes that it is organized for the purpose of evading the statute, it is at liberty to so say and revoke the certificate, as it might revoke the certificate of any other person who sold liquors illegally." 53 But where it appeared that a ball which was given by a club was not confined to 50. Citing People v. Sinell, 34 N. 510. See also People v. Hamilton, Y. St. R. 898; People v. Bradley, 33 17 Misc. R. (N. Y.) 11, 39 N. Y. N. Y. St. R. 5(52; People v. Luhrs, 7 Supp. 531. Misc. R. 503, 28 N. Y. S. 498. S3. Matter of Lyman, 2s App. Div. 51. People v. Adelphi Club of City (N. Y.) 127. 134, 50 X. V. Supp. 977. of Albany, 149 N. Y. 5, 43 N. E. 410, Per Runisey. J. See Cullman v. Trol- 52 Am. St. Rep. 700, 31 L. R. A. 510. ley Club. 65 App. Div. (N. Y.) 202, Per Height, J. 72 N. V. Supp. 629; Lyman v. Gra- 52. People v. Adelphi Club of City mercy Club. 39 App. Div. (X. Y.) of Albany, 149 N. Y. 5, 13 N. E. 410, 661, 57 X. Y. Supp. 376. 52 Am. St. Rep. 700, 31 L. R. A. (34S SALES BY SOCIAL CLUBS. [§ 59ft its members but that the public generally were admitted and that liquors were sold indiscriminately to any person admitted and desiring them it was held that the rule that the police might be en- joined from entering a private club did not apply and that an in- junction restraining them from so doing was properly not con- tinued/' 4 § 596. North Carolina. In the first case in which this question arose it appeared that a number of persons had organized a club for social and literary pur- poses and became duly incorporated under the general law. Inci- dental to the main purposes of the organization, the members, but no other persons, were permitted to purchase from the defendant, its steward, meals, cigars and liquors, which were furnished by the club at a price fixed by its officers, sufficient to cover the cost but not for the purpose of profit. Subsequently an election was held in the township in which the club was located, under the local option law, at which a majority of the votes were cast for prohibition. The court held that the furnishing of liquors to the members of the club under these circumstances was a sale which was in viola- tion of the local option act. The section under which the indict- ment was framed provided that when the result of the popular vote favored prohibition "then and in that case it shall not be lawful for the Board of Commissioners to license the sale of spiri- tuous liquors, or for a person' to sell any spirituous liquors within such county, town or township " until another and reversing elec- tion shall be held, " and if any person shall sell any spirituous liquor within such territory as specified" such person offending shall be guilty of a misdemeanor. 55 And the conclusion reached in this case was followed in a later decision in the same state in which the same state of facts existed. 56 •"4. Cercle Francais de L'Harmonie 59 Am. Dec. 287. The court said: v. French, 44 Hun. (X. Y. ) 123. "There can be no question that in a 55. State v. Lockyear, 95 X. C. G33, strict legal sense, the transaction de- 597,598] SALES i;v S0( iai. CL1 BS. 649 § 597. Oregon. In Oregon also a transaction of this kind by which liquor is disposed of by a club to its members is held to be a sale. The court said: "The question whether or aol the furnishing of in- toxicating or fermented liquor, by a club to its members, in the manner above stated constitutes a sale in violation of laws pro- hibiting sales, or whether or not it constitutes a sale, within the meaning of a law requiring a license before one can engage in retailing such liquor has been the subject of various and conflicting decisions by a number of the appellate courts of the country. While the cases cannot be reconciled, the cases as well as the weight of authority is undoubtedly in favor of the rule that the distribu- tion and consumption of liquors, in a club, by its members, in the manner above stated, is a sale and a violation of the laws stated. 57 § 598. Pennsylvania. If an incorporated club is organized and conducted in good faith with a limited and selected membership really owning its property scribed in the verdict is a sale of spirituous liquors. All the elements of an executed contract are present. The corporate body, a legal entity, and the owner of the liquor through its servant, the defendant, delivers it to the purchaser at his call, and re- ceives a fixed compensation in money therefor. The property in 1 he goods passes and vests in the purchaser, and the money paid is received for and becomes the property of the club. Can there be any doubt that a corpo- ration may make contracts and deal with a corporator, precisely as with a stranger, and valid obligations capa- ble of enforcement, be thus formed between the parties? And is not this dealing witli the prohibited subject directly within the terms of the stat- ute, and does it not open the door to the mischiefs intended to be sup- pressed? It is not necessary that the vendor should be authorized to sell to any applicant, as an ordinary re- tailer, lie is not allowed to sell to any one, and the fact that customers must be members of the association, does not relieve him of criminal re- sponsibility under the mandatory stat- ute. * * * Without going into the refinements which are apparent in some of the opinions, we are aol aide to exempt the act imputed to the defendant from the denunciation con- veyed in the broad and comprehensive words, which forbid ' any person to sell any spirituous liquors ' within the designated locality." Per Smith, ('. J. 50. State v. Xeis, 108 N. C. 787, 13 S. E. 225, 12 L. K. A. 412. "■ state v. Kline 50 Oreg. 42G, 93 Pac 237. Per Moore, J. 650 SALES BY SOCIAL CLUBS. [§ 59X in common, and formed for social, literary or other purposes to which the furnishing of liquor to its members would be incidental merely, the furnishing of liquors to such members is not a sale within the license laws prohibiting the keeping of any house, room or place, inn or tavern for sale of liquors without a license first had and obtained. 58 And the fact that the result of permitting clubs to furnish liquor to their members would be to deprive licensed hotels of their patronage to which they are impliedly entitled by the payment of heavy license fees, is a subject for the consideration of the legislature and not of the courts. 59 And in view of the fact that at the time a liquor license act was passed it was known to every one that for a long period of years clubs had openly and notoriously furnished liquor to their members, the implication is that if the legislature had intended to prohibit the practice it would have done so in express terms. 60 But if the object of an organized club is merely to provide members with a convenient method of obtaining a drink whenever they desire, or if the form of membership is no more than a pretense so that any person with- out discrimination can procure liquor by signing his name in a book, or buying a ticket or a chip, thus enabling the buyer to con- duct an illicit traffic, such an organization falls within the terms of the liquor license act. 61 So where an organization was a club in form merely, and the evidence showed that it was a mere sham or device to evade the license laws and in fact a barroom where liquor was sold without a license, it was held that it was not error to in- struct the jury that if they believed the testimony it was their duty to find the defendant guilty of that with which he was charged, 58. Klein v. Livingston Club, 177 94, 55 Am. St. Rep. 717. Pa. St. 224, 35 Atl. GOG, 34 L. R. A. 60. Klein v. Livingston Club, 177 94, 55 Am. St. Rep. 717. See also Pa. St. 224, 35 Atl. 606, 34 L. R. A. Commonwealth v. Smith, 2 Pa. Dist. 94, 55 Am. St. Rep. 717. Rep. 474. 61. Klein v. Livingston Club, 177 •"»!>• Klein v. Livingston Club, 177 Pa. St. 224, 35 Atl. 60G, 34 L. R. A. Pa. St. 224, 36 Atl. 606, 34 L. R. A. 94, 55 Am. St. Rep. 717. g g99] SALES nv social I 1.1 BS. 651 namely, selling liquor without a License. 82 And in another c in Pennsylvania it is declared that an unlicensed Bale of liquor, under the guise of club distribution, in an attempt to evade the law. is clearly unlawful and the law will look through all disguises and so pronounce it. 88 § 599. South Carolina. Where the eluh is a device to evade the law, it is subject to law and the statute, but the court favors the view that if a bona fi•"• Columbia Club v. McMaster, 35 Pa. St. »rv2, 24 Atl. til. p. <• i. i t s. K. 290, 28 Am. St. Rep. 63. Commonwealth v. Brem. 5 Pa. s ._ )|; 1V) . Mr , Ill- 65 s - E - 73 °- S. C. 1. 14 S. E. 200. 28 Am. St. Rep. Per Jones, C. J. 820. g 5 2 SALES BY SOCIAL CLUBS. [§ 600 § 600. Tennessee. In an early case in Tennessee it was held that a club was liable to pay the tax under an act providing that a certain sum should be paid for " every club room where liquors of any kind are kept." 66 In a later case in Tennessee, however, it was decided that a social club organized and conducted in good faith as such and which kept some liquors in stock for the use of its members who paid for each drink as it was taken, no profit being made by the club upon such sales was not within the meaning of a statute requiring retail liquor dealers to pay a privilege tax. 67 And in a recent case it was held that where the evidence showed that a lodge was a bona fide one and that the furnishing of liquor was purely incidental, that the lodge was not engaged in the " hand- ling of liquor for sale." The court said in this connection: " It may be proper to observe in conclusion, that it is a matter of common knowledge, of which we may take judicial notice, that since the legislative enactment of the various statutes extending from time to time the territorial scope within which intoxicatng liquors cannot be legally sold, clubs have sprung up in great num- bers in different localities, and obtained charters, whose apparent purpose is to evade, if possible, under the forms of law, the effect of these statutes. It is hardly necessary to say that such a club can find no warrant for its existence in the preset holding. Where- ever, in any case, the legality of its action in this regard is chal- lenged by the state, it will be the duty of the court to scrutinize closely, in order to see that no such device is attended with suc- ci ss. In every case, when the serving of liquor to members, or others, is the principal purpose, or one of the chief objects, of such an organization, and not a mere incident, or when it is sold for profit, this being carried into a general fund for the payment of salaries, or for distributing among its members, or otherwise, «;<;. Tennessee Club v. State, 7 Lea 67. Tennessee Club v. Dwyer, 11 (Tenn.) 291. Lea (Tenn.) 452, 47 Am. Rep. 298. §§ 601,602,603] SALES BY SO< LAL CLUBS. 653 the disguise should and will be uncovered, and the club and itfl members made amenable to the law." c7a § 601. Texas. In Texas it has been decided that a club in which intoxicants were furnished to members without profit is not a " public house " or " a house for retailing spirituous liquors " as used in a statute which forbids the playing of cards in such a place. 08 But in a later case it is decided that in a local option precinct in which the sale of intoxicants is prohibited except for sacramental and medic- inal purposes, a sale by a club to one of its members is a sale within the terms of the statute. 09 And if the club is a mere device to evade the liquor laws it is subject to the operation of the statute. 7 " § 602. Virginia. In Virginia the question is determined on the basis of the bona fides of the club, the doctrine having been followed that if a bona fide club, distributing liquors only to its members there is not a sale within the meaning of the liquor laws. 71 § 603. Washington. In a recent case in Washington in which such a transaction was held to be a sale in violation of an ordinance forbidding the sale or disposal of liquors without a license the court said: " When the liquor is bought through the regularly constituted agent of the corporation, it undoubtedly belongs to the corporation, the title, as well as the possession being in the corporation, and it remains there until it is transferred To the buver for a consideration. Then G7a. Moriarty v. State (Tenn. S. Tex. 20, 33 S. W. 113, 30 L. R. A. C. 1909), 124 S. W. 1010. Per 505. Beard, C. J. iiU - Finn v. State, 38 Tex. Cr. 75. <;*;. Koenig v. State, 33 Tex. Cr. 41 S. W. 1102. 367, 20 S. W. 835, followed in Winters 70. Krnavek v. State, 38 Tex. Cr. v. State, 33 Tex. Cr. 305, 20 S. W. 44. 41 S. W. 612. 839. See State v. Austin Club, 89 Tl. Piedmont Club v. Common- wealth, 87 Va. 540, 12 S. E. 963. <;:,4 SALES BY SOCIAL CLUBS. [§§ 604,605 it becomes the property of the purchaser, and is at his absolute dis- posal. He can drink it himself, give it to his guest, or throw it away; the corporation has no further interest in it. In other words it has been paid for, and the transaction, it seems to us, involves all the elements of a sale. The fact that the disposition he article can only be made to a member of the corporation does not change the character of the transaction. It simply limits the number of transactions. Nor does the fact that the members of the club to whom the sale is made have an interest in the prop- erty affect the case." 72 § 604. West Virginia. In West Virginia it is decided that such disposal of liquors is within a statute of that state requiring a license, it being declared that the statute is so broad as to allow no shift or device to defeat the purpose of its enactment as it plainly forbids the selling, offer- ing or exposing for sale by one person to another of the forbidden intoxicants without a state license, no matter for what purpose, literary, social or otherwise. 73 § 605. United States. Where a statute requires that a license fee be paid by retail dealers in malt liquors and defines a retail dealer as " Every person who sells or offers for sale, malt liquors in less quantities than five gallons at one time, but who does not deal in spirituous liquors shall be regarded as a dealer in malt liquors," it has been decided that there was a sale within the meaning of the statute where an incorporated benefit association sold tickets to its members for five cents each, each of which tickets entitled the one presenting 72. City of Spokane v. Baughman, " Although a different rule may pre- (Wash. 1909), 103 Pac. 14. Per vail in other states this is the only Dunbar, J. reasonable conclusion that can be 73. State v. Shumate, 44 W. Va. reached under our statute." Per 490, 29 S. E. 1001. The court said: Dent, J. K ,;,„;] SALES Bl SOCIAL CLUBS. 655 it to a glass of beer, which beer had been purchased by the associa- tion and was its property. 7 ' 1 § 606. England. In a case in England which is frequently referred to the view is taken that a sale to a m< mber of whal is known as a mi mb re' club, and which is a bona fide club is not a sale within the meaning of a licensing act. It appeared in this case that the club was ad- mittedly a bona fide club, having trustees in whom by the rules of the club all the club property was vested. The members of* tin- club could procure liquors in the club on payment for the same, the receipts for same going to the general funds of the club, the profits from such disbursements of liquor being about thirty-three per cent. The court in its opinion said: " A sale involves in it some- thing in the nature of a bargain. Here there was no bargaining or any contract between the members and Graff with respect to this liquor. It is part of the terms of membership that every member shall be entitled to obtain a bottle of wine or other liquor on pay- ment of the price fixed for it by the committee. Foster was acting solely and within his right as a club member, not by reason of any new contract, but by reason of his old contract of association, by which, upon his subscribing a certain yearly or other periodical sum to the funds of the club he became entitled to have liquor supplied to him as a member. . . It was I think a transfer of a special property or partial interest in the liquor to Foster, but it was not a sale.'' 75 In a later case in England where defendants, who were trustees of a club, had been convicted under the Licensing Acts for selling liquor to persons who were not members of the club, and it was found as a fact that the steward was employed by the committee and paid by the trustees and that his orders were not to serve anyone but members of the club, it was held that 74. United States v. Ciller, 54 Fed. 7.".. CratT v. Evans, l<; La* Times 656. R. X- S. 347. Per Field, J. g56 SALES BY SOCIAL CLUBS. [§ QQQ the conviction was wrong* on the ground that a master or principal is not liable for a sale in such a case by an agent in direct violation of bona fide orders, and made without his knowledge or assent, direct or indirect. 70 In a case which subsequently arose it ap- peared that a club was carried on by a limited company, that all liquor drank at the club belonged to the company and not the mem- bers and that all profit from the sale of liquor went to the com- pany. Under the rules of the club a person who was not a share- holder was elected by a sub-committee as an honorary member pending inquiries, and by such rules pending the final election he was entitled to all the privileges of the club. A person was so elected, paid his subscription but was subsequently rejected and his subscription returned. Between the time of his election and rejection he was supplied with liquors for which he paid, and this was held to constitute sales of liquor to him within the meaning of the licensing acts and it was decided that the club should obtain a license under such laws. 77 This case was decided upon the prin- ciple that the club was a proprietary club and not a purely mem- bers' club. And the principle controlling in this case was followed in one decided a few years later. In a subsequent case it appeared 76. Newman v. Jones, 55 Law agreed further that they were under Times Rep. N. S. 327. no obligation to furnish to members 77. Bowyer v. Percy Supper Club of the club any special wine or any Limited, G9 Law Times Rep. N. S. particular spirits. They supplied 447. The court said: "We are deal- them as they thought proper out of ing with the facts of this case only, their own stock, and I am wholly un- and the constitution of this so called able to see any distinction in princi- club, was that the members, upon pie between this, and the case of a payment of certain subscriptions, be- friendly society arranging with the came entitled to the use of this house, landlord of a public house that they and to the accomodation which the shall have the use of a room on cer- house afforded, and were further en- tain occasions, and be supplied by titled to enter into contracts for the him with liquors. In that case a li- purehase of wines and spirits with cense would be necessary and this the proprietors out of their stock. It case seems to me to be so closely is agreed on all hands that the stock analogous that the same course would of wines and spirits in this place be- follow." Per Mathew, J. longed to the properietors. It is SALES BY SOCIAL CLUBS. 65 that the members of a club formed it into a joint stock company. There was no rule or by-law which prevented other than members from holding shares in the company and subsequently some of the shares came into the hands of persons who were not members. Af- ter this had taken place the question came before the courts as to the right of the company to sell liquors without a license and it was held that the sale under such circumstances to members was in fact a sale within the meaning of the law, the company being a separate legal entity from the members of the club. 78 § 607. Conclusion. From an examination of the cases in the preceding sections it will be seen that the courts are not in harmony upon the question of the right of social clubs, organized and conducted in good faith, to sell or dispose of liquors to its members. We think, however. the following conclusion seems now to be favored by the weight of authority and by the latest decisions, that is that though a club 78. National Sporting Club Lim- ited v. Cope, 82 Law Times R. N. S. 352. The court said: "As a mat- ter of fact there are other than mem- bers in the company. It is said that their number is few, and that their presence arises from accidental cir- cumstances, people who were members and shareholders having died or re- signed their membership. However there are some outside shareholders, and there being some we have got a legal entity (the corporation) which is not either in law or in fact identi- cal with the members of the club. It is to this outside body thai the property of the club belongs, and if the members of the club in buying any of that property, by taking a glass of whisky or whatever it is. are distributing some common property, they are distributing not their own common property, but the common property of a different body, — the shareholders of the company. The consequence is that this case is brought within the principle applic- able to an ordinary proprietary club. The proprietor in this case is incor- porated, but the proprietor makes profits out of this club and pays divi- dents, and there are some few share- holders who are not members of the club who are actually taking profits, arising from the sale of the liquors, or at any rate from the general carry- ing on of the club in which the liq- uors are sold, and of which the sell- ing of the liquor forms part. It aeems to me quite impossible to brim.' this ease within the principle of mem- bers clubs. It comes within the prin- ciple applicable to a proprietary club where there is a sale of liquors. And it is a sale by retail." Per Channell, J. 658 SALES BY SOCIAL CLUBS. [§ 6( j7 may be organized and conducted in good faith as a social club, yet in the absence of some statute authorizing it, such club has no right under the liquor laws to sell or dispose of liquor to its mem- bers, such drinks being paid for or charged to the members, and that a transaction of this character is a sale within the meaning of a license or prohibition law. Another proposition which may be stated as clearly the law is that if the club is organized and conducted as a mere scheme to evade the liquor laws then it is subject to the operation of such laws. § 608] INJUNCTION AND ABATEMENT. 659 CHAPTER XXIII. INJ UNCTION AND ABATEMENT. Section G08. When traffic a nuisance — generally. GOO. Right of individuals to abate. 010. Injunction and abatement — statute as to constitutional, till. Particular statutes construed. 612. Statute authorizing proceeding in equity. 613. Municipal powers generally. 614. Nature of proceeding. 615. Remedy by injunction — generally. 616. Injunction — instances. 617. Temporary injunction. 618. Right of individual — private nuisance. 619. Right to a second injunction. 620. Who may be enjoined. 621. Injunction against owner of building — when granted. 622. Injunction against owner of building— when not granted. 623. Covenant not to sell liquors — enjoining breach of. 624. Who may institute proceedings. 625. Petition — form and sufficiency of. 626. Answer. 627. Evidence. 628. Defenses — generally. t>2!>. Effect of discontinuance of nuisance. 630. Judgment or decree. 631. Modifying decree. (i.'lj. Contempt — proceedings to punish for — nature of. 633. Contempt — sufficiency of information. 634. Contempt — what constitutes. 635. Effect of appearance in court — contempt. 636. Conviction as prerequisite to abatement. § 608. When traffic a nuisance — generally. Where the liquor business is a legally legitimate one, it is not 6(30 INJUNCTION AND ABATEMENT. [§ 609 a nuisance per se and not a thing or occupation that must neces- sarily become a nuisance. 1 But where a person sells liquors in violation of law his business is thereby rendered illegal and its continuance may be enjoined as a nuisance under the statute, not merely because of such violation but on the ground that the con- tinuance of the business thereafter is the maintenance of a nuisance. 2 And unless the statute so provides a place need not be kept in a disorderly manner to render it a nuisance. 3 § 609. Right of individual to abate. Though a statute may declare that places where liquors are sold shall under certain circumstances be considered as nuisances and may be abated, yet they can only be abated by due process of law, and such a statute does not justify their abatement by an individual without proceeding as authorized by law. 4 So in a recent case it is said : " Intoxicating liquors, whether exposed for sale unlawfully or not, are property in the District of Columbia, and can not be l« De Blanc v. Mayor and Board and a public nuisance which a court of Trustees, 106 La. 680, 31 So. 311, of equity at the instance of the state 56 L. R. A. 285. may enjoin. Dispensary Commis- In Iowa it is decided that the mulct sioners of Lee County v. Hooper, 128 law is a modification of the original Ga. 99, 56 S. E. 997. prohibitory statutes to the extent that To constitute a liquor nuisance it a liquor dealer who has complied with is not essential that the public or all the conditions thereof cannot be even a considerable portion of it, be enjoined from the operation of his admitted or enticed there to drink business on the ground that it is a intoxicants. It is sufficient if some nuisance as was formerly the case. persons are permitted to resort there Campbell v. Jackman Bros., 140 Iowa for such purpose. State ex rel. 475. 118 N. W. 755, citing State v. Lyon v. City Club (S. C. 1909), 65 Van Vliet, 92 Iowa 476, 61 N. W. S. E. 730. 241 ; MeKeever v. Beacom, 101 Iowa 3. Howard v. State, 6 Ind. 444. 173, 70 N. W. 112; Phillips v. Gif- 4. State v. Stark, 63 Kan. 529, 66 ford, 104 Iowa 458. 73 N. W. 1033; Pac. 243, 54 L. R. A. 910, 88 Am. St. Iowa City v. McQuerry, 114 Iowa Rep. 251, holding that one who de- 586, 87 N. W. 498. stroys or injures property used in 2. Hammond v. King, 137 Iowa maintaining such a nuisance, except 548, 114 N. W. 1062. as provided by law is guilty of a Where the sale of liquor is pro- trespass. See also Brown v. Perkins, hibited a sale thereof is unlawful 12 Gray (Mass.) 89. £ 610] INJUNCTION AND ABATEMENT. 661 taken and destroyed, save by due process of law. Assuming for the sake of argument, that the keeping for sale without license constitutes a public nuisance, as well as an offense, the fact affords neither justification nor excuse for their destruction by the defend- ant. The sale of intoxicating liquors without license is prohibited by law, and may be prevented and punished, but this can only In- done through the agencies and in the manner provided by the law. The abatement of public nuisances and the enforcement of the penal laws are matters of public duty and administration, and the interference of private persons, save in the making of complaints before the proper public officers and tribunals, is itself a nuisance, which, if accompanied by acts of violence, renders the wrongdn.-r liable both to civil action and criminal prosecution. Mob law can have no recognition in our system and should be sternly re- pressed in its beginning." 5 § 610. Injunction and abatement — statutes as to constitutional. In several states statutes are in force making the sale of in- toxicating liquors under certain conditions a nuisance and pro- viding for proceedings to enjoin or abate the same. Statutes of this character have uniformly been held to be constitutional. 6 So it has been said by the United States Supreme Court : " The state having authority to prohibit the manufacture and sale of intoxica- ting liquors for other than medical, scientific and mechanical purposes, we do not doubt her power to declare that any place, kept and maintained for the illegal manufacture and sale of such <>• Nation v. District of Columbia, Maine. — Davis v. Auld, 90 Me. 559, 38 Wash. Law Rep. 144. Per Mr. 53 ^tl. jig. Chief Justice Shepard. Maasachuaetts.-Cxrl&m v. Rugg, 6. Illinois. — Streeter v. People, 69 ^ ^ ^_ ' 149 Mass. 550, 22 N. E. 55, 5 L. R. A. Iowa*— McLane v. Leicht, 69 Iowa 193, 14 Am. St. Rep. 446. 402, 29 N. W. 327 ; Littleton v. Fritz, Texas. — Burckell v. State. 47 Tex. 65 Iowa 488, 22 N. W. 641, 54 Am. Civ. App. 393. 106 S. W. 190. Rep. 19. 662 INJUNCTION AND ABATEMENT. [§ 611 liquors, shall be deemed a common nuisance, and be abated, and at the same time, to provide for the indictment and trial of the offender. One is a proceeding against the property used for for- bidden purposes, while the other is for the punishment of the offender." 7 § 611. Particular statutes construed. It is constitutional for the legislature to declare that the sale of liquors without a license is a public nuisance. 8 And the legis- lature has the power to declare a place where intoxicating liquors are sold, in violation of law to be drank on the premises a nuisance and it is not a cruel or unusual puishment to provide for the abatement of such a nuisance. 9 So a statute providing that " evi- dence of the sale, or keeping of intoxicating liquors for sale, in any building, place, or tenement, shall be evidence that the sale or keeping is illegal, and that such premises are nuisances," has been held to be constitutional. 10 And where a nuisance is created by the illegal sale of liquors, a place is a nuisance where illegal sales are made without regard to whether the liquors are kept at such place. 11 But a statute declaring places and buildings in which intoxicating liquors are sold or kept for sale to be common nui- sances does not authorize the destruction of such buildings by pri- vate individuals or by the public authorities, as the abatement of a nuisance caused by the illegal use of a building should consist in the prevention of the future illegal use and not in the destruction of the building. 12 And a proceeding to close up a place as a nuisance being statutory, the substance of the statute must be complied with in order to legally close it, and if it is not so legally 7. Mugler v. Kansas, 123 U. S. »• McLaughlin v. State, 45 Ind. 623, 671, 37 L. Ed. 205, Sup Ct. 338 - D ,, T , n , lO. State v. Mellor, 13 R. I. 666. Per Mr. Justice Harlan. 11. State v. Viers, 82 Iowa 397, 48 S. Burckell v. State, 47 Tex. Civ. N. W. 732. App. 39.3, 106 S. W. 190. 12. state v. Paul, 5 R. I. 185. §§ 012,613] INJUNCTION AND ABATEMENT. 663 closed it is not illegal to reopen it without giving the bond required by statute. 13 § 612. Statute authorizing proceeding in equity. A statute may validly authorize a suit in a court of equity to abate a liquor nuisance. 14 So the facl thai the state by statute or common law can proceed, and has hitherto proceeded by criminal prosecution to punish for the maintenance of a public auisi and also to abate the nuisance, does not prevent the legislature authorizing it to proceed in equity to restrain, enjoin or abate such a nuisance, by the use of the equity writ of injunction. 15 Such an act providing for a proceeding in equity to enjoin and abate a liquor nuisance is not unconstitutional as depriving a defendant of the right of trial by jury nor as being an attempt by the legis- lature to enforce a criminal law by a civil action nor because it authorizes any citizen of the county to maintain the action without showing that he is especially damaged by the nuisance. 16 § 613. Municipal powers generally. The municipal authorities may under a proper delegation of power enact ordinances declaring places where liquors are sold in violation of law, or in places of a certain class, to be nuisances. 11 13. state v. Clark, 62 Vt. 278, 19 properly be determined by a jury. ,\tl. 981. State v. Saunders, 66 X. H. 39, •-'■"> 14. Eilenbecker v. Plymouth Atl. 588 9 L. R. A. 271. County District Court, 134 U. S. 31, 17. A, code provision authorizing 10 Sup. Ct. 424, 33 L. Ed. 801. a municipality <" abate a liquor nui- 15. Davis v. Auld, 96 Me. 559, 53 sauce by the closing of the building Atl. 118. i» which it is maintained "as against 16. Littleton v. Fritz, 65 Iowa 488, the use or occupation of the Bame 22 X. W. 641, 54 Am. Rep. 19. fol- for saloon purposes " has been held lowed in Pontius v. Bowman Bros. to confer power upon the municipal- 66 Iowa 88. 23 X. YV. 277. ity to so close a building used for the The defendant is not entitled to a purposes of a brewery. Craig v. jury trial as a matter of right in a Werthmueller, 78 Iowa .vs. 4-'? X. W. proceeding for an injunction, but the 606. per Given, ('. J. The court said: only question being tin' existence of "The words 'saloon purposes' as an alleged illegal use, that issue may here u-ed mean more than simply a (5(J4 INJUNCTION AND ABATEMENT. [§ (J14 So where a city council in the exercise of their judgment and dis- cretion in discharging the legislative function declared that places where hop ale, hop and malt mead or cider were sold were nui- sances, it was held that their determination was conclusive. 18 And it has been held to be a valid exercise of the power of a muni- cipality over nuisances to prohibit the using or keeping of in- toxicating liquors in places of a certain class, such as refreshment saloons or restaurants. 19 And an ordinance of a city to the effect that all places where persons are permitted to resort for the pur- pose of drinking intoxicating liquors in violation of law are com- mon nuisances has been held not to violate a constitutional pro- vision that all men are possessed of equal and inalienable natural rights among which are life, liberty and the pursuit of happiness. 20 But where the liquor business is conducted under a license from a municipality, it is legal, and town authorities have no power to single out a certain saloon, arbitrarily declare it a nuisance and order it closed and if the order be not obeyed fine the proprietor for not obeying. 21 § 614. Nature of proceeding. A petition for an injunction is a civil proceeding. 22 And place for the retail of intoxicating the unlawful manufacturing, selling drinks. The evident intent of the or keeping for sale of intoxicating liq- legislature is that the court shall uors." order the abatement of every place 18. Laugel v. City of Bushnell, 197 established to be a nuisance, either 111. 20, 63 N. E. 1086, affg. Laugel v.. by being maintained for the unlawful City of Bushnell, 96 111. App. 618. manufacturing, selling or keeping of *»• State v. Clark, 28 N. H. 176, intoxicating liquors. It would be a 61 Am. Dec. 61. manifest disregard of the legislative 20. City of Topeka v. Raynor, 61 intent to say that these nuisances Kan. 10, 58 Pac. 557. should not be abated by being closed, 21. De Blanc v. Mayor and Board as provided in the statute, simply be- of Trustees, 106 La. 680, 31 So. 311, cause they are not generaly designated 56 L. R. A. 285. as 'saloons.' The term saloon, 22. State v. Collins, 68 N. H. 299, though often differently applied, as 44 Atl. 495. used in this statute, has reference to So in Vermont it has been held that places that are nuisances by reason of a proceeding in chancery to enjoin 8 , (ir ,j INJUNCTION AND ABATEMENT. 665 where the statute so provides a proceeding in equity to enjoin a liquor nuisance is to be governed by the general rules of equity procedure, but it is not subject in every respect to the general rules of equity pleading. 23 And the procedure under a statute providing for an injunction being according to the ordinary civil procedure in equity, the petition can be sustained upon a 1. preponderance of evidence in favor thereof, since none of the re- sults of a conviction for crime follow. 24 § 615. Remedy by injunction generally. The function of courts of equity is the protection of private property and civil rights, except when enlarged by statute and they will not interfere by injunction to prevent or punish criminal or immoral acts unconnected with the violation of a private right, nor will they enforce moral obligations or duties, 25 So in the absence of a statute making illegal sales a nuisance and providing for remedy by injunction, a court of equity will not grant an injunction to restrain such acts because they are in violation of law. 26 So in a recent case in Oklahoma it is decided that there and abate a liquor nuisance is purely 24. Davis v. Auld, 90 Me. 559, 53 civil in character, being a proceeding Atl. 118. to fix the status of the property. 25. Campbell v. Jackman Bros., 140 State v. Collins, 74 Vt. 43, 52 Atl. Iowa 475, 118 N. W. 755. C!) A railroad company is not en- And in Texas it has been decided titled to an injunction to restrain the that a proceeding to enjoin a liquor sale of liquors in a particular town nuisance is at most quasi criminal. to its employees on the ground that Jelinek v. State (Tex. Civ. App. by such sale they become intoxicated 1908), 115 S. W. 908. and unfit to perform their labor. In But in Kansas a proceeding for the such a case the remedy of the em- abatement of a nuisance has been plover would be to discharge the em- held to be a criminal, and not a civil. ployee and sue him ai law for action. State v. Crawford, 28 Kan. damages. Northern Pacific R. R. Co. 743. v. Whalen, 3 Wash Ter. 4f>2. 17 Pac. 23. Wright v. O'Brien, 98 Me. 190, 890. 56 Atl. G47: Examine Lord v. Chad- UC. State ea> ret. Attorney General bourne, 42 Me. 429. 66 Am. Dec. 290; v. Schweickardt. 109 Mo. 490. 19 S. Black v. MeGilvery, 38 Me. 287. W. 47. (366 INJUNCTION AND ABATEMENT. [§ 615 being no statute authorizing procedure by injunction to restrain the unlawful sale of liquors, a court of equity will not interfere upon the bare fact alone that the place where liquors are sold is unlicensed. 27 And no court has jurisdiction to simply enjoin one from selling liquor, independent of the place where the nuisance exists. 2S So an injunction will not run against a person for the mere selling of liquor in violation of law, independent of the place where it is sold and hence will be refused where the evidence does not show illegal sales or keeping for sale in the place sought to be enjoined, when suit was commenced. 29 Again, where the statute provides certain remedies and injunction is not one of them, injunction will not issue. 30 But a statute providing a remedy for the abatement by injunction of a liquor nuisance is held to be cumulative of other remedies without regard to whether other remedies provided by law may be adequate and complete. 31 And where in a suit to enjoin as a nuisance a resort in which it was alleged intoxicating liquors were unlawfully sold, the evidence showed that the business conducted by defendant constituted a public nuisance which was specially injurious to the plaintiff, the continuation of the resort was properly enjoined without regard to The illegal carrying on of the sale 80 N. W. 209; Clark v. Riddle, 101 of liquors without a license, when a Iowa 270, 70 N. W. 207. license is required, or in violation of An injunction does not run against a local prohibition law unless it is the person for the mere selling of declared to be a nuisance by statute, liquor in violation of law. It oper- eannot be enjoined, as chancery courts ates to abate and enjoin a nuisance have no jurisdiction to enjoin the conducted by him in the building commission of offenses against the referred to in the petition, and by criminal laws of the state. Pike operation of law is extended to him County Dispensary v. Mayor and in person, so that he may not sell at Councilmen of Brundidge, 130 Ala. any place within the judicial district. 193, 30 So. 451. Clark v. Riddle, 101 Iowa 270, 70 N. 27. Territory of Oklahoma v. City W. 207. of Oklahoma, 19 Okla. 149, 92 Pac. 30. Northern Pac. R. Co. v. Wha- 144. len, 149 U. S. 157, 13 Sup. Ct. 822, 28. Clark v. Riddle, 101 Iowa 270, 37 L. Ed. 686. 70 N. VY. 207. 31# Eegg v. Anderson, 116 Ga. 401, 29. State v. Frahm, 109 Iowa 101, 42 S. E. 720. §§ , <>17] INJUNCTION AND ABATIMI 667 the question as to the persons who made sales of intoxicating liquors in themselves unlawful. 82 § 616. Injunctions — instances. A druggisl who sells liquor without requiring the affidavit of the applicant as provided by statute may be enjoined. 38 And a liquor dealer may be enjoined from conducting the business where he has violated the law by having more entrances than the law permits, even though the additional entrance may be only for his convenience and that of his employee. 34 And the manufacture and sale of intoxicating liquors within a state without the permit required therefor by statute, though for the purpose of export only, will render the manufactory a nuisance. 35 Again, where a club is formed and conducted for the purpose of evading the liquor law of the state, it is to be regarded as a common and public nuisance which may be abated as such. 36 § 617. Temporary injunction. The court may in its discretion upon a proper showing of facts, grant a temporary injunction pending a further hearing. So a temporary injunction may be granted before the defendant has been convicted criminally for keeping the nuisance unless con- viction is by statute a prerequisite to relief. 37 Where such an injunction has been granted it has been decided that the state must promptly prove its case or, on answer filed, plainly and positively denying all the material allegations of the bill, a motion to dissolve must be sustained, unless good and sufficient cause is shown for further delay. 38 In Iowa it is decided that where defendant at the M. Tron v. Lewis, 31 Ind. App. 598, 43 X. W. 606. 178. 66 N. E. 400. 86- Cohen t. Kin? Knob Club. 55 33. State v. Davis, 44 Kan. 60, 24 W. Va. 108, 40 S. E. 799. Pae. 73. 37. Littleton v. Fritz, 65 Iowa 488, 84. State v. Gifford, 111 Iowa 648, 22 N. W. 041. 54 Am. Rep. 10. 82 X. W. 1034. 88. State V. Keyman, 48 W. Va. 35. Craig v. Werthmueller, 78 Iowa 307, 37 S. E. 591. 668 INJUNCTION AND ABATEMENT. [§§ 618,619 hearing, elects to take testimony by depositions, thus necessitating a continuance, a temporary injunction does not issue as a matter of right. 39 In Kansas, where in a suit to suppress a liquor nui- sance the state applies to a court or a judge for a temporary in- junction at the commencement of the suit no notice to the defend- ant is necessary. 40 § 618. Right of individual — private nuisance. The fact that a nuisance is a public one does not prevent it from also being a private one which will entitle an individual, who sustains some peculiar damage different from that sustained by the public in general, to maintain an action to enjoin it. Thus a beer garden in the vicinity of a person's residence may be of such a character where large crowds congregate at all hours of the day and night, and many persons become intoxicated and indulge in loud, profane and obscene language, thereby depriving such person and his family of their sleep and keeping them in constant fear of injury. 41 And a suit for damages lies, as for an actionable nuisance, at the instance of nearby property owners, against a saloon established in a residential locality, including buildings devoted to religious and educational purposes. 42 § 619. Right to a second injunction. A decree for an injunction and abatement of a nuisance ob- tained by one citizen of a county although not enforced, is a bar to a second suit for the same purpose by another citizen for the abate- ment of the same nuisance in the absence of a showing that the former decree was obtained by collusion, with the intent to use 39. Powers v. Winters, 106 Iowa questions of fact are determined. 751, 77 N. W. 509. 41. Kissel v. Lewis, 156 Ind. 233, 40. State v. Jepson, 76 Kan. 644, 59 N. E. 478. 92 Pac. 600, holding that in such a 42. Haggart v. Stehlin, 137 Ind. case the court has the same judicial 43, 29 N. E. 1073, 22 L. R. A. 577. discretion that exists when other §§620,621] INUNCTION AND ABATEMENT. 669 it to defeal the purpose of the law. 43 Where an injunction was, however, fraudulently obtained for the purpose of shielding the licpior seller it constitutes no reason for refusing a subsequent in- junction, proceedings for which are brought in good faith. 44 And where a second petition describes a place as on the same street but by a different number, and it is claimed that they are identical, such claim will not be sustained, the petitions describing different places and the evidence failing to establish their identity. 4 ' § 620. Who may be enjoined. Ordinarily the injunction is granted against the one guilty of keeping or maintaining the nuisance. Where the injunction is against the keeper of a nuisance who occupies a part of a building, it should only be against such part as is in his occupancy or under his control. 40 A mortgagee of the premises should not be enjoined without allegation and proof of a right of possession or control. 47 But a non-resident assignee in bankruptcy holding the title in fee to the premises may under the Iowa Code be served with notice of such proceedings by publication. 48 § 621. Injunction against owner of building — when granted. By statute in some states the owner of the building in which such a nuisance is maintained is under certain circumstances deemed guilty of aiding in its maintenance. 49 So the owner of *:••• Dickinson v. Eichorn, 78 Iowa is maintained ahould be made parti 9 710. 4.'5 X. \Y. 620. See Steyer v. to a proceeding to obtain an injunc- McCauley, 102 Iowa 105. 71 N. W. tion against its countinuance. Den- 194, distinguishing Carter v. Steyer, mead v. Parker (Iowa S. C. 1010). 0:: Iowa 533, 61 N. \V. 956. 124 X. W. 7S0. >«• Cameron v. Tucker, 104 Iowa »7. Stale v. Massey, 72 Vt. 210, 47 211. 7:* X. W. 001. Atl. 834. US. Farley v. Hollenfeltz, 79 Iowa 48. Radford v. Thornell, 81 Iowa 126, 14 X. W. 243. 700, 45 X. \Y. 890. J*>. Shear v. Brinkman, 72 Iowa consent, and the sale of liquor had 698, 34 X. W. 483. ceased before the petition was filed. 672 INJUNCTION AND ABATEMENT. [§ 623 tract not to sell intoxicating liquors upon the granted premises or not to sell them in less than a certain quantity, such a restriction is not a general but only a limited and reasonable restraint of trade. It may also be a covenant running with the land and therefore effectual as against an assignee of the vendee having notice of it. 60 So where a deed contains a restrictive clause providing that the pr.emises conveyed shall not be used by the grantee for saloon pur- poses so long as adjoining property is owned by the grantor, equity will enjoin the grantee or those holding as subsequent grantees from a breach thereof. 61 And it has been decided that in an action by the grantors of certain premises to restrain a grantee from using it for a saloon, or for the sale of intoxicating liquor, under a parol agreement to that effect, an injunction will lie on account of a lease made on condition that the lessee secure a license, though the lessee after he had taken possession and the license had been granted never called or paid for the license, nor paid rent to the lessor. 62 The grantor cannot, however, enjoin the sale of intoxi- cants on a lot which he conveyed on the express condition that they should never be sold thereon, where he subsequently conveyed the adjoining lot without such restriction, and intoxicants are sold on it, and it is held that it is no answer that the omission of the restriction from the subsequent conveyance was a mistake, if he took no steps to correct it. 63 60. Sutton v. Head, 86 Ky. 156, 5 disposing of his property, to prevent S. W. 410. See also Turner v. John- such a use by the grantee as might son. 7 Dana (Ky. ) 435; Reilly v. diminish the value of remaining land, Otto, 108 Mich. 330, 66 N. W. 228. or impair its eligibility for other 61. Star Brewery Co. v. Primas, uses. Watrous v. Allen, 57 Mich. 163 111. 652, 45 N. E. 145. 362; Smith v. Barrie, 56 Mich. 314. 62. Hall v. Solomon, 61 Conn. 476, But is there no mutuality in such 23 Atl. 876. agreement? It cannot be said that 63. Jenks v. Pawlowski, 98 Mich. a grantor has a right afterwards to 110. 56 N. W. 1105. The court said, sell an adjoining lot without re- per McGrath, J.: " Restrictions of striction, and thereby diminish the this class are sustained upon the value of his former grantee's prop- theory that a party has the right, in erty, and still be allowed to insist § G24] INJUNCTION AND ABATEMENT. i;;:; § 1524. Who may institute proceedings. Where the statute designates who may maintain a proceeding to abate a liquor nuisance it can only be maintained by the persons designated. 64 Under a statute conferring 3uch a righl upon any citizen of the county, it has been decided thai any male person over twenty-one years of age, who has his presenl home and domicile in any county, although it may be for a temporary purpose, is a citizen of that comity, provided he has a fixed intention of re- maining there for an indefinite period of time, and has no home, domicile or right of citizen-hip elsewhere. 60 And where the right is conferred upon any citizen his motive in bringing the action has been held immaterial except as it may bear upon his veracity and credibility, the question being simply whether he is qualified by statute to bring the action and whether the defendant has violated the law. 60 And in such a case the right to prosecute it is held nor to cease by the citizen's removal from the county. 67 Where the county attorney is authorized to prosecute the action in the name of the state while there is no necessity for adding the name of any person as relator, the state being the real party in interest, the ad- dition of the name of the county attorney as relator is not preju- dicial to a defendant and will not render the petition for injunction demurrable. 68 In South Dakota it is decided that where by statute a place or house where intoxicating liquors are sold at retail with- upon the restriction. Chippewa i- not put in issue by a general denial Lumber Co. v. Tremper, 75 Mich. 36, and not being put in issue nerd not 42 X. \V. 532." be proved. Shear v. Green, 7:? Iowa 64. Applegate v. Winebrenner, 66 688, .'5(1 X. W. G42. citing Littleton v. Iowa, 67, 23 X. W. 267. Fritz. 65 Iowa 188, 22 X. W. 641; 65. Fuller v. McDonnell, Tn Iowa Littleton v. Hani-. 73 Iowa 167, 34 220, 39 X. W. 277, holding that a X. W. son. and followed in Goetz v. methodist clergyman holding under Stutsman, 7:: [owa 691, 36 X- YV. 644. appointment by a bishop of the 66. n,. miner v. Bonson, 139 [owa church is a citizen thougb subjeel to -Jlo. 117 X. \V. :2 ."> 7 . removal at any time by order of the *>~- Judge v. Kahl. 74 Iowa 486, bishop. 38 V W. 173 An allegation that the proceeding 68. Pottenger v. state. .-, | Kan. is brought by a citizen of the county 312, 38 Pac. 278 (374 INJUNCTION AXD ABATEMENT. [§ 625 out a license, is declared to be a nuisance, a remedy by injunction exists in favor of the town where such nuisance is maintained. 69 In Georgia it is decided that the illegal sale may be abated by a court of equity upon information filed in behalf of the public by the solicitor general of the judicial circuit wherein such sale is carried on. 70 The action being brought for the public benefit and the right to intervene as given by statute being based on a private interest where an action has been begun by a citizen, another citizen has no right to intervene and join the plaintiff in the prosecution. 71 § 625. Petition — form and sufficiency of. The petition should allege facts showing that the place com- plained of comes within the operation of the statute. 72 So where by statute knowledge by the owner is essential, if the owner is joined there should be an allegation of knowledge. 73 And where the maintenance of a liquor nuisance may be by sales in one of several ways by one authorized to keep and sell liquors the petition should specify the illegal sales complained of. 74 Again, where the statute requires that facts should be stated, the allegations of a petition, unless stated upon the petitioner's personal knowledge and as facts so that the court can weigh their value do not comply with the statute. 75 Where a petition for the abatement of a liquor nuisance contains a name of one who is not a legal voter as required by Right of a solicitor of a county to 73. State v. Massey, 72 Vt. 210, appear as a prosecutor in place of 47 Atl. 834. original petitioner asking leave to 74. Abrams v. Sandholm, 119 Iowa withdraw, see State v. Lynch, 72 N. 583, 93 N. W. 563, so holding in the H. 185, 55 Atl. 553. case of illegal sales by a pharmacist '!!>• Town of Britton v. Guy, 17 S. and deciding that a failure to so D. 588, 07 N. W. 1045. specify will render the pleading sub- 70. Walker v. McNelly, 121 Ga. -> oct to a motion for more s P ecific 114 iQ c -p "]Q statement, when properly presented. Compare Jelnick v. State (Tex. Civ. ^ 71. Conley v. Zerber, 74 Iowa, 699, App ig08)j ng g w gQg 39 V Wl 113, 75. Matter of Wheaton v. Slattery, 72. state v. Marston, 64 N. H. 603, 96 App . Div . (N y.) 102, 88 N. Y. 15 Atl. 222. Supp. 1074. Per Chase, J. §§626,627] INJUNCTION AND ABATEMENT. 675 statute, it bas been held proper to amend it by substituting the name of one who is. 76 § 626. Answer. An answer filed several days after the petition which simply denies that the defendant at the time of answering is main- taining a nuisance is had on demurrer. 77 And an allegation in an answer that the injunction case is brought in bad faith and to annoy defendant needs no reply, it is no defense and should be stricken out on motion. The statute confers the right to bring such a proceeding, and upon proof of the necessary facts it is the duty of the court to abate the nuisance. The question of the motive of the individual is immaterial for though the right is conferred upon him the action is for the benefit of the general public. 78 § 627. Evidence. Where a petition to enjoin the illegal sale of liquor charges a continuing offense evidence of sales made after the commencement of the action is competent. 79 And payment of the United States special tax as a liquor seller is sufficient evidence to warrant a finding that the person paying the same is a common seller and the premises kept by him a common nuisance. 80 And the petition being a civil proceeding, the issues are to be determined upon the balance of probabilities, and a defendant who does not testify in 76. State v. Collins, G8 N. H. 46. 44 77. Tibbetts v. Burster. 76 [owa Atl. 495. The court declared: 170, 40 X. W. 7<>7 following Ilalf- " There is nothing in the nature ot man v. Spreen, 75 [owa 309, 39 X. this action (State v. Saunders, 66 X. W. 512. H. 39. 25 Atl. 5SS: 1 :.i ii. diir's Peti- 78. McQuade v. Collins, 93 Iowa yon, 66 X. II. L72, 20 Atl. 930) 22. 61 X. W. 213. Sufficiency of an- that excepts it from the operation of swer, see (lark v. Riddle, 101 Iowa the genera] rule, authorizing the 270, To X. \V. 207. court to allow amendments to be 7;> - Hall v. Coffin, 10S Iowa 466, mad.' in civil actions by adding new 79 X. W. 274, citing State v. Wil- parties or substituting new ones for liams, 90 [owa 513, 58 X. \V. 904. original parties, if justice requires 80« state v. Lincoln, 7:? Vt. 221, 51 the change to be made." Per Atl. 9. Chase, J. ,;;<; INJUNCTION AND ABATEMENT. [§ G28 his own behalf is held not to be protected from adverse comment and inference. 81 Where the petition contains the allegations re- quired and no answers are filed such allegations under the Iowa Code have been held to stand admitted by operation of law and no evidence is necessary to entitle the plaintiffs to the relief de- manded. 82 § 628. Defenses — generally. The knowledge of an agent of the existence of a liquor nuisance is rented premises is imputable to the owner. 83 And there is no substantial variance between an allegation that defendant knew and consented to the existence of a liquor nuisance and proof that his agent knew or had reason to know of it. 84 So though a defend- ant, a druggist, may claim that the sales were made by a clerk without his knowledge, yet a decree for an injunction is proper where the evidence shows that he must as a reasonably intelligent man have known of such sales by his clerk. 85 A liquor dealer's violation of law through mistake of law is also no excuse in a pro- ceeding for an injunction. 86 And in an action to enjoin a nuisance in the sale of liquors by a pharmacist it is no response to assert 81. State v. Collins, 68 N. H. 299, cist to obtain an injunction against 44 Atl. 495. the continuance of his business as a 82. Bloomer v. Glendy, 70 Iowa liquor nuisance the fact that the un- 7 r. 7 , 30 N. YV. 48G. The court said: lawful sales complained of were not " The material facts upon which made by him but by others in his plaintiff's right of recovery depended place of business is immaterial. being admitted, or, what amounts to Strowert v. Johnson (Iowa 1909), the same thing, being uncontroverted, 123 N. W. 336. it was not necessary for them to in- 86. State v. Gifford, 111 Iowa troduce any evidence whatever." Per 648, 82 N. W. 1034. Reed, J. A plea by a defendant that he did 83. State v. Collins, 74 Vt. 43, 52 not know that the liquors sold by Atl. 09. him were intoxicating is unavailing 84. State v. Collins, 74 Vt. 43, 52 in a proceeding against him for Ael. Oil. violation of an injunction against 85. Elwood v. Price, 75 Iowa 228, the sale of intoxicating liquors. 39 N. W. 281. State v. Ilgner & Co. (Kans. S. C. In a proceeding against a pharma- 1909), 105 Pac. 14. § (jog] [NJUNCTION AND ABATEMENT. 677 that he was acting in good faith or ihat the party responsible for the commencement of the proceeding acted from questionable motives. 87 Again intent is not an element of the offense involved in a violation of the liquor law, and therefore the advice of police authorities that sales may be lawfully made on a prohibited day is not a defense to a prosecution for a violation of the law in that regard. 88 But the fact that a bond given by a firm of liquor dealers, is signed by one of the members as surety, renders it de- fective but does not constitute a ground for enjoining the business as a nuisance, the bond being amendable by statute. 89 § 629. Effect of discontinuance of nuisance. The nuisance must be one which exists at the time of filing the petition. 90 And where a nuisance complained of has ceased be- fore proceedings to enjoin it are commenced an injunction is prop- erly refused. 91 But where the court is satisfied that the discon- tinuance was not in good faith it may in its discretion grant an injunction. 92 And where it appears that sales of liquor were fre- quently made by a druggist in violation of the law prior to the bringing of an action to enjoin the same, an injunction should not be refused on the ground that no illegal sales have been made since the action was commenced and probably will not be in the future. 93 And in a recent case in Iowa it is decided that after the granting of a temperary injunction restraining the illegal sale of liquor, a defendant who has rendered a final hearing necessary cannot procure a dismissal of the action on the eve of trial by showing that he has abandoned the business. 94 But an injunction 8T. Rizer v. Tapper, 133 Iowa 628, J> -- Judge v. Kribs, 71 Iowa 1S3, 110 N. W. 1038. 32 N. W. 324. 88. Eammond v. King, 137 Iowa 93. Long v. .Toder, 139 Iowa 471. 548. Ill X. W. 1062. 116 X. W. 1063. 89. Clark v. Riddle, 101 Iowa 270, '•>*• Drummond v. Richland City 70 X. W. 2()7. Drug Co., 133 Iowa 266, 110 X. W. !><>. State v. Saunders, 66 X. II. 30. 471. The eourt said: " Until the final 91. State v. Striekford. 70 X. II. trial was had it could not be known •207, 47 Atl. 262. judicially whether the defendant had C7S INJUNCTION AND ABATEMENT. [§ G30 to restrain a person from making unlawful sales was held to have been properly refused where the evidence showed conclusively that such person had in good faith abandoned the business long before the trial, had surrendered his permit, and had sold his interest in the business and in the premises in which it was carried on, the court declaring that there was then no occasion to issue an in- junction against him. 95 § 630. Judgment or decree. The order is to the person convicted which may be enforced, if the nuisance be continued, by attachment for contempt of court. 96 In case of an injunction restraining the illegal sale of intoxicating liquors by a firm it continues to be effectual after the dissolution of the firm. 97 Where a statute provides that upon proof that a place is a nuisance an order shall be entered closing the building against its use for the purpose prohibited and so keeping it for one year but if the owner give bond to abate the nuisance the court may allow him to open it for other purposes it is construed as requiring the place to be effectually closed unless the bond is given and a decree that the place be closed against the purpose prohibited " but not as against any other use " is erroneous. 9S A abandoned the business or not, and held that the court properly entered having rendered a final trial neces- a decree of final injunction and as sary, it was too late for him to an incident, taxed an attorney's fee escape the usual consequences by to him. Sawyer v. Botti (Iowa S. showing abandonment of the business C. 1910), 124 N. W. 787. after the granting of the preliminary 95. Patterson v. Nicol, 115 Iowa injunction and before trial." per 283, 88 N. W. 323, citing Judge v. McClain, J. Kribs, 71 Iowa 183, 32 N. W. 324; Where a person ceased to sell Shear v. Brinkman, 72 Iowa 698, 34 Justus beer after a proceeding was N. W. 483. commenced to restrain such sale by !><; - Schultz v. State, 32 Ohio St. him but he litigated the question 270, citing Miller v. State, 3 Ohio St. whether he had a right to sell it and 475. if the court had entered no decree of '•>'- Carter v. Bartel, 110 Iowa 211, perpetual injunction againsl him, he 81 N. W. 402. could have resu 1 the sale so far 98. McCoy v. Clark, 109 Iowa 464, as the action was concerned, it was 80 N. W. 538. §§ 631,632] EXJUNCTION AND ABATEMENT. 679 decree enjoining the sale on " part of " a designated lol is nol void for uncertainty as tin- mandate would he violated by a sale on any part of the lot." A judgmenl enjoining a liquor auisance will not be disturbed if there is any evidence to sustain it though an appar- ent preponderance of the testimony may be againsl the finding and judgment. 1 In Iowa a private citizen may enforce obedience to a decree restraining the illegal sale of liquor and may employ such counsel as he chooses even though residing in another county. - § 631. Modifying decree. While a court of equity has power to modify a decree yet where it appears that a decree was properly granted enjoining the sale of liquors by defendant the mere fact that there has been a change in the liquor law since the decree was rendered, which permits the sale of liquors under certain conditions is not of itself a sufficient reason for a court of equity to exercise this power; it being de- clared in such a case that if the law itself modifies the decree no decree is necessary to establish that fact and that if it does not modify the court has no power to do so. 3 Where plaintiff was served with notice of an application in vacation time to modify an order of injunction, and appeared and resisted, he thereby con- sented to the authority of the court to modify the order in vacation, and it is held that he can not afterwards raise that question. 4 § 632. Contempt — proceedings to punish for — nature of. A court of chancery having power to abate a public nuisance has f>o. Ver Straeten v. Lewis, Judge, A person who has no interest 77 [owa 130, 41 X. W. ">04. in or title to the premises mi l« Siekinger v. State, 15 Kan. 414, which an alleged Liquor nuisani 25 Par. 868. said to have been maintained cannot -• Brennan v. Roberts, 125 Iowa be heard to complain of thai portion 615, 101 X. W. 460. of the decree which establishes the •'t. Denby v. Fie, 106 Iowa 299, 76 judgment for costs as a lien on the X. W. 702. premises. Denmead v. Parker (Iowa i. Landi v. Remley, 113 Iowa 555, S. C. 1910), 124 N. W. 780. 85 X. W. 783. 680 INJUNCTION AND ABATEMENT. [§ G32 authority to enjoin its commission and maintenance and conse- quently to punish for disobedience of its order. 5 The legislature may also fix the penalty for violation of injunctions in liquor cases and in exercising such power does not intrench upon the inherent power of the courts to punish for contempt. 6 And a statute au- thorizing a judge in vacation to commit for contempt of an in- junction issued under the liquor law is not unconstitutional on the ground that it authorizes judgment by one who is not a court within the meaning of the constitution. 7 In Texas a proceeding for contempt in violating an injunction is criminal in its nature and is properly brought in the name of the state though the pro- ceeding for an injunction is brought in the name of a citizen. 8 And in Iowa it is decided that the proceeding to punish for viola- tion of an injunction being quasi criminal a conviction should not be sustained unless the proof of guilt is clear and satisfactory, but if there is clear and satisfactory evidence the action of the trial court should not be set aside merely because some evidence has been erroneously received. 9 But proceedings to punish for contempt do not come within a code provision requiring the court in criminal proceedings to fix a time for pronouncing judgment, which in no case shall be less than six hours after verdict. 10 And a party charged with contempt is not of right entitled to a jury trial. 11 In Kansas it is decided that it is error for a court or judge in any case to proceed against a person for a constructive 5. State v. Murphy, 71 Vt. 127, 41 Court, 120 Iowa 345, 102 N. W. 115: Atl. 1037. Harlan v. Richmond, 108 Iowa 101, <- State v. Thomas, 74 Kan. 300, 78 N. W. 809.* 80 Pac. 499. 10 - McGlasson v. Johnson, 80 Iowa 7. McLane v. Granger, 74 Iowa 477, 53 N. W. 207. 152, 37 X. W. 123. 11. State v. Thomas, 74 Kan. 300, 8. Fisher v. Casa County District 80 Pac. 499; State v. Durein, 40 Kan. Court, 75 Iowa 232, 39 N. W. 283. 695, 27 Pac. 148; State v. Markuson, »• Russell v. Anderson (Iowa, 5 N. D. 147, 04 N. W. 934, reaffirmed Pit)!)), 120 X. \V. 89. Per McClain, in State v. Markuson, 7 N. D. 155, 73 J., citing Wells v. Given, 120 Iowa N. W. 340, 102 N. W. 100 ; Drady v. District §§633,634] INJUNCTION AND ABATEMENT. 681 contempt, without an affidavit or information in writing, contain- ing a statement of facts constituting the contempt charged, being filed in courl or submitted to the judge. 12 § 633. Contempt — sufficiency of information. Under a statute requiring the information in proceedings to punish for a violation of such an injunction to set out the alleged facts constituting the violation an information setting out the issue of the injunction, defendant's knowledge thereof, and that sundry times, since, defendants had sold and kept for sale intoxi- cating liquors is sufficient, without naming the building where the sales were said to have been made, or the names of the purchasers, such facts being regarded as evidential ones which are unnecessary in an information. 13 An information charging the violation of an injunction need not set out the decree. 14 § 634. Contempt — what constitutes. One who was not a party to proceedings in which an injunction was granted is not guilty of contempt of such injunction by un- lawfully selling liquors in the same place. 15 But the owner of a building is held properly to be in contempt for violation of the injunction where the evidence shows that, although he was not active in keeping the saloon, it was actively kept by another with the undoubted knowledge and assent of the owner. 1 *' Where an injunction prohibits illegal sales within a certain district a single sale within such district violates the injunction and the seller 12. i, } re Earmer, Petitioner, 47 14. Brennan v. Roberts, 125 fowa Kan. 262, J7 Pac. 1004, citing State 615, 101 N. W. 460. v. Henthorn, 46 Kan. 613, 26 Pac. 15 » Pearson v. District Court of 937 Cass County, 90 Iowa 756, 57 N. W. 13. McGlasson v. Scott, 112 Iowa 871, following Buhlman t. Humphrey, 289. S3 N. W. 974. 86 Iowa 597, 53 N. W. 318; New- Sufficiency of information in pro- (diner v. Tucker. 89 Iowa 4S6, 56 N. ceedinp to punish for contempt, Bee W. 409. also Pumphray v. Anderson (Iowa 16. England v. Johnson, 86 Iowa 1909), 119 N. W. 528. 751, 53 N. W. 268. GS2 INJUNCTION AND ABATEMENT. [§ 635 is liable for contempt. 17 And an injunction against the sale of liquors is held in Iowa to be violated by the sale of liquors in original, unbroken imported packages, and it is decided that the seller cannot escape the penalty on the ground that he in good faith believed the sales were not a violation of the law. 18 Again proof of a lack of a druggist's permit is not necessary to a con- viction for contempt in violating an injunction where the sales shown by the evidence would have been illegal even if the defend- ant had had a druggist's permit. 19 And evidence of an agreement between the counsel and the judge that the decree shall for the purposes of contempt remain inoperative for a certain length of time is no defense to proceedings to punish for contempt for a violation during such period. 20 So under such a statute the fact that the sheriff was orally advised by the judge to close the build- ing temporarily does not relieve one from liability for contempt where he breaks into and uses the building. 21 § 635. Effect of appearance in court — contempt. Where defendants enjoined were in court by attorney when the decree of injunction was rendered they, are held to be chargeable with knowledge of its contents, and the decree need not be served upon them to render them guilty of contempt for violating the same. 22 The court said: " It is insisted, however, that the injunc- tion for which the decree provided was not in force, because a writ of injunction had not been issued and served. But the law does not require useless formalities. The defendants enjoined were in court, by attorney, when the decree was rendered, and are charge- able with knowledge of all it contained. They had appeared in 17. Schlosser v. Mould (Iowa). 121 20. Buck v. Powers (Iowa 1909), X. W. 520. 121 X. W. 1042. 18. Slate v. Bowman, 79 Iowa 566, 21. Lewis v. Brennan (Iowa 1908), 4 4 \. W. 813. 117 X. W. 279. i». State v. Plamondon, 75 Kan. 22. Hawks v. Fellows, 108 Iowa 209, 89 Pac. 23. 133, 78 X. W. 812. § 636] INJUNCTION AND AUATKMKNT. 683 the case, and resisted the demands of the plaintiff, and had no rights, which the issuing of a formal writ would have subserved. The injunction as to them was in force from the time the decree was rendered." 23 § 636. Conviction as prerequisite to abatement. Under the statute in some states upon the conviction of a per- son for maintaining a liquor nuisance a judgmenl is proper order- ing the destruction of the liquors and the removal and sale of the fixtures and movable property. 24 And a conviction of a person for the maintenance of a nuisance may by statute be made a pre- requisite to a right to abate the place as a nuisance. So under a code provision in West Virginia that " all houses, buildings, and places of every description where intoxicating liquors are sold or vended contrary to law shall be held, taken and deemed to be common and public nuisances, and may be abated as such upon the conviction of the owner or keeper thereof," it was held that a court of equity could not restrain by injunction a party charged with selling intoxicating liquors contrary to law, or abate the ho building or place where such intoxicating liquors were alleged to be sold contrary to law until the owner or keeper of such house or place had been convicted of such unlawful selling at the place named in the bill. 25 23. p Pr Robinson, C. J., citing 24. State v. Adams, SI Iowa 593, Milne v. Van Buskirk, Iowa 558; 47 N. W. 770. Bartel v. Hobson, 107 Iowa 044, 7s 25. Hartley v. Henretta, 33 W. Va. N. W. G89. 222, 13 S. E. 375. 6 gj. INDICTMENTS AND INFORMATIONS. CHAPTEK XXIV. INDICTMENTS AND INFORMATIONS. Section 637. Charging the offensee — generally. 638. Charging the offense — application of general rules. 639. Errors in spelling. 640. Defendants — joinder of. 641. Name of accused. 642. Changing class to which defendant belongs. 643. Name of purchaser of liquor. 644. Allegation as to purpose for which sold. 645. Stating offense in caption. 646. Indictment must not charge disjunctively. 647. Where statute is in disjunctive — use of conjunctive. 648. Surplusage does not vitiate. 649. Matters of evidence. 650. Matters of defense. 651. Want of a license. 652. Sale to minor — want of consent of parent or guardian. 653. Averment as to place — generally. 654. Averment as to place continued. 655. Averment as to place — description of building. 656. Changing time of offense — generally. 657. Precise time not esesntial. 658. Offences consisting of succession of acts — charging with a con- tinuando. 659. Time of essence of offense — sale on Sundays. 660. Sales on election day. 661. Knowledge — intent. 6C2. General rule as to charging in language of statute. 663. Exceptions in statute — rule as to. 664. Exceptions in statute — application of rule. 665. Duplicity. 666. Indictments not duplicitons. 667. Joinder of offenses. g ,;;;7j [NDICTMENTS AND INFORMATIO 685 § 637. Charging the offense generally. By the constitution of the United States and also generally by the constitutions of the several States it is provided that the ac- cused is entitled to demand the nature and cause of the accusation against him. 1 It is a general rule that it is nut -ufficienl to charge in an indictment that the defendant has committed a certain speci- fied crime but that it must be stated how he committed the crime by reciting the material facts and circumstances constituting the offense. 2 And it is also a general rule that in an indictment the nature of the offense and the party upon whom it was committed should be stated with such certainty that the accused may know what he is called upon to answer. 3 These general principles ap- ply in the case of indictments or informations for a violation of the intoxicating liquor laws. 4 The indictment should be suffi- ciently precise it charging the offense to protect the accused from a second prosecution for the same offense. 5 And this rule as to certainty also applies in the case of a complaint charging a viola- tion of a city ordinance in respect to the sale of liquors.'"' But the fact that a charge in an indictment or information is stated in gen- !• Joyce on Indictments, Sec. 237. Buren, Circuit Judge. 130 Mich. 695, 2. Joyce on Indictments, Sec 240. 90 X. W. 694. 8. Joyce on Indictments, Sec. 250. Missouri. — State v. Cox, 2'.' M". *. Connecticut. — Barth v. State, 18 475. Conn. 431. New York. — People v. Ban Delano re.— State v. Solio, 4 Penn. N. Y. App. Div. 559, 71 X. Y. Supp. 1:;s 54 A ,i 684. 123, 15 X. Y. Cr. 400: People v. Olm- ' . ,, ,, . , 11Q sted, 74 Hun. 323. 20 X. Y. Supp. Georgia. — Maddox v. State, 118 ' ' SIS. Ga. 32, 44 S. E. 800; O'Xeil v. State, 116 Ga. 839, 13 S. E. 2 is. Kansas. — State \. Etatner, tl Kan. 429, 24 Pac. 953. North Carolina. — State v. Farmer. 104 X. C. 887, 10 S. E. 563. Texas. — Burch v. Republic, 1 Tex. 608. Kentucky.— Commonwealth v. Ri- Vermont.— State v. Wooley, 59 Vt. ley, 14 Bush. 44. Commonwealth v. 357 m \)i si. White, is B. Mon. 192. 5. Seifried v. Commonwealth, 101 afoine.-^tate v. Lane. 33 Me. 536. Pa. St. 200; Alexander v. State, -J'.' Maryland. State v. Kiefer, 90 Md. Tex. 195. 165, 44 Atl. 1043. « ! - Cunningham v. Berry, 17 Michigan. — Anderson v. Van (\±2. 22 Pac. 115. 6S6 INDICTMENTS AND INFORMATIONS. [§ 638 eral terms will not usually be regarded as fatal after verdict though if the attention of the court had been called to the indefi- niteness by a demurrer or motion to quash it might have been so held. 7 The legislature has not the power to dispense with such allegations in indictments as are essential to reasonable particu- larity and certainty in the description of the offense. 8 § 638. Charging the offense — application of general rules. A statute requiring a concise statement of the offense to be set forth is not complied with by an allegation that the act of the defendant was wilfully done. 9 And it has been held insufficient to allege simply that the act was contrary to law. 10 So an indict- ment charging that the defendant did " unlawfully sell intoxicat- ing liquor, to wit, unlawfully to one " etc., was held not to charge the offense with sufficient certainty. 11 And a complaint charging the defendant with selling " a quantity of spirituous liquors " but which does not allege that the sale was in violation of the provisions of any law charges no offense it being declared that the court will not assume that acts which are consistent with innocence and not alleged to be in violation of law are criminal. 12 Where the statute prohibiting the unlawful sale of liquors defines several offenses it is not sufficient to charge an unlawful sale but the particular kind of offense which is unlawful should be stated. 13 So where the statute mentions several different sales which a druggist is pro- hibited from making it is not sufficient to charge him with a sale " not made under and in compliance with the general laws." 14 And where it is no offense to sell or give away liquor unless it be 7. State v. Ratner, 44 Kan. 429, State, 61 Ala. 208. 24 Pac. 953. 11 - State v. Solio, 4 Penn. (Del.) 8. McLaughlin v. State, 45 Ind. 138, 54 Atl. 084. 338. 12. State v. Lane. 33 Me. 537. !>. People v. Gregg, 59 Hun. (N. 13. State v. Burkett, 51 Kan. 175, Y.) 107. 13 N. V. Supp. 114. 32 Pac. 025. 10. State v. Schmid, 57 N. J. L. 14. Anderson v. Van Buren, Circuit 625, 31 Atl. 280. Examine Ulmer v. Judge 130 Mich. 695, 90 N. W. 694. < ,;3S] iM)H tm i:\rs and informations. 687 (lone in the manner prohibited by statute in charging the offense the mode of sale or gift should be specified -<> as to bring it within the statute. 15 And an indictment agains! a physician for giving a false and fraudulent prescription for 1 i < j 1 1 < . 1 • ~ should set out not only that the prescription was false and fraudulent but in what particulars such falsity and fraud consisted. 1 * Again an indictment against a county clerk for unlawfully issuing a license to sell liquor in a local option district is insufficient where it fails to aver that his action was from a corrupt motive or fraudulent, or that he knew that it was unlawful for him at the time to issue the license. 17 But where the quantity of liquor sold is not an element of the offense it need not be alleged. 18 And in a com- plaint for an unlawful sale of intoxicating liquor, it is not neces- sary to allege, neither on the trial is it held to be necessary to prove, whether it was by the defendant's own hand, or by that of his clerk, servant or agent that the sale was made. 19 And an indictment for the unlawful sale of intoxicating liquor, contrary to the local option liquor law, need not allege that the sale was for a valuable consideration. 20 In South Dakota it has been decided 15. People v. Norton, 76 Hun. lion lie is charged with illegally is- (N. Y.) 7, 27 N. Y. Supp. 851. suing. State v. Manning, 87 Mo. A decree enjoining all persons from App. 78. maintaining a liquor nuisance on the 17. Commonwealth v. Wood, 116 premises therein described is sufficient Ky. 74S. 7(i S. \Y. 842. as a public record to impart con- Where a decree enjoins the niain- structivf notice to all persons, so as tenance of a nuisance on certain to render any person guilty of con- premises it is a violation thereof to tempt who sells liquors on such maintain a place there for soliciting premises. Dormody v. Jackson orders for intoxicating liquors to be (Iowa 1910), 125 X. W. used as a beverage. Seidlitz v. 16. State v. Farmer, lot N. C. Jackson (Iowa mini. 125 X. W. 887, 10 S. E. .">»;:;. - :; "- citing McCollum v. McCon- Prescription illegally issued aughty, 141 Iowa 172, 110 X. W. by druggist. — An indictment charg- 539. inc that the prescription in question ,s - lUock v. State 66 Ala. 493. was issued to one Ed. Spencer and 1». state v. Brown, ::i Me. 520. that it was for the -ah- of intoxicat- -°- Bowel! v. State, 124 Ga. t'-08, 52 ing liquors i- sufficient to give notice S. E. 649. to the defendant of the very presrrip- GS8 INDICTMENTS AND INFORMATIONS. [§§ 039,640,641 that an information stating the time when, the place where, and the person helieved to be guilty of the offense of keeping intoxi- cating liquors for sale as a beverage, contains all the essential ele- ments for an information under the statute. 21 § 639. Errors in spelling. Errors in spelling do not vitiate an indictment or information where the meaning is not thereby changed or rendered obscure. It will not be held defective if it clearly indicates the intention of the pleader and there can be no mistake as to what is meant. 22 This rule has been applied in the case of the use of the word " spirit- ual " 23 or " spiritous " in an indictment for the unlawful sale of spirituous liquors. 24 § 640. Defendants — joinder of. Where more persons than one engage in the doing of a criminal act in such a way as to make each one guilty of the crime, they may be jointly indicted, either in a single count or in separate counts. 25 So two or more persons may be jointly charged in the same indict- ment with the offense of selling spirituous liquor, without license. 26 But it is decided that there should be no joinder in the absence of proof showing a common design or concert of action. 27 § 641. Name of accused. It is a general rule that in an indictment or information both the Christian and the surname of the accused should be stated. 28 But while it would be better for the indictment to state the name of the accused in full yet it is held that a failure to state the 21. State v. Brennan, 2 S. D. 384, 26. Commonwealth v. Sloan, 4 50 N. W. 625. Cush (Mass.) 52; Commonwealth v. 22. Joyce on Indictments, § 204. Harris, 7 Gratt (Va.) 600. 23. State V. Clark, 3 Ind. 451. 27. State v. Edwards, 60 Mo. 400. 24. Brumley v. State, 11 Tex. App. 28. See Joyce on Indictments, 114. Chap. IX. as to allegations as to 25. Joyce on Indictments, § 423. name and description of the accused. § G42] INDICTMENTS AND ENFORMA 1 ] 689 Chirstian name more fully than by initiale is not a good ground for a plea in abatement where these initials were correctly stated and are the initials of the accused person. 2 ' § 642. Charging class to which defendant belongs. In some cases it is not essential to allege the particular class of dealers to which the defendant belongs. 30 So where it is made criminal by statute to sell to minors without the consent of their parents without regard to whether the sale ia by th< keeper of a dramshop it is not necessary to aver in an indictment that such a sale was made by the keeper of a dram shop. 31 Tiider a large pro- portion of the statutes, however, the offense can only be committed by one of a particular class of dealers and where this is the case it is an essential element of the offense which should be shown by the indictment or information. 32 Thus under a statute of this charac- ter it may be necessary to allege that the defendant was a liquor dealer, 33 dramshop keeper, 34 distiller, 35 grocer, 36 merchant, 37 2». Eaves v. State, 113 Ga. 749, 39 S. E. 318. SO. Arkansas, State v. Butcher, 40 Ark. 362. Maryland. — State v. Edlavitch, 77 Md. lit. 26 Atl. 406. Massachusetts. — ( lommonwealth v. Luddy, 143 Mass. 563, It) X. E. 448. Minnesota. — State v. McGinnis, 30 Minn. 48, 14 X. W. 256. Missouri. — Austin v. State, 10 Mo. 591. 81. Johnson v. People. 83 111. 431. 82. Arkansas, State v. Martin, ::t Ark. 340. Kentucky. — Heiner v. Common- wealth, 13 Buch. 295. Maryland. — Bode v. state. 7 Gill. 326. Minnesota. — State v. Heitsch, 29 Minn. 134, 12 X. \Y. 353. Missouri. — State v. Lisles. .".s Mo. 359; State v. Rinnan. 26 Mo. 167. \ • York. — People v. Page, 3 Park Cr. 600. South Carolina. — State v. Thomas 7 Rich. 481. Dakota. — State v. Bradford. 13 S. D. 201, 83 X". W. 47. Tennessee. — State v. Bradshaw, 2 Swan. 627. Texas. — McQuerry v. State. 40 Tex. Cr. 571, 51 S. W. 1217. Virginia. — Glass v. Commonwealth, 33 Gratt. 827. Wisconsin. — Jensen v. State, 60 Wis. 577, 19 X. W. 374. :?.{. state v. Martin. 34 Ark. 340. •">• stair v. Lisles, 58 Mo. ! 86. State v. Thomas, 7 Rich. L. (S. C.) 481. ;:,: - state v. Bradshaw. 2 S l Trim. 627. 690 INDICTMENTS AND INFORMATIONS. [§ 643 physician, 38 or tavern or inn keeper. 39 And where no one but a druggist, pharmacist or an assistant can hold a permit to sell liquors it is held to be necessary to specifically aver that the defendant was one of these three. 40 § 643. Name of purchaser of liquor. It is a general rule that it is not essential to the sufficiency of an indictment or information for an unlawful sale that there should be an allegation of the name of the purchaser. 41 And it has been held sufficient to allege that the defendant " did sell to divers per- 37. State v. Runyan, 26 Mo. 1G7. 38. McQuerry v. State, 40 Tex. Cr. 571. 51 S. W. 247. 39. Kentucky. — Herine v. Common- wealth, 13 Bush 295. Maryland. — Bode v. State, 7 Gill 626. Minnesota. — State v. Heitsch, 29 Minn. 134, 12 N. W. 353. New York. — People v. Page, 3 Park. Cr. 600. Wisconsin. — .Jensen v. State, GO Wis. 577, 19 N. W. 374. 40. State v. Shinn, 63 Kan. 638, 66 Pac. 650. An indictment for the sale of in- toxicating liquors contrary to law need not charge that the defendant is not a registered apothecary. State v. Mercer, 58 Iowa 1S2, 12 N. W. 269. 41. Arkansas. — State v. Bailey, 43 Ark. 150; Johnson v. State, 40 Ark. 453. Colorado. — Langan v. People, 32 Colo. 414. 76 Pac. 1048. Florida.— Jordan v. State, 22 Fla. 528. Georgia.— Wells v. State, 118 Oa. r,r,6, 45 S E. 443; Hancock v. State, 114 Ga. 439, 40 S. E. 317. Illinois. — Myers v. People, 67 111. 435. Iowa. — State v. Becker, 20 Iowa 438. Kansas. — State v. Moseli, 49 Kan. 142, 30 Pac. 189; Junction City v. Webb, 44 Kan. 71, 23 Pac. 1073; State v. Schneiter, 27 Kan. 449. Louisiana. — State v. Brown, 41 La. Ann. 771, 6 So. 638; State v. Kuhn, 24 La. Ann. 474. Mississippi. — Lea v. State, 64 Miss. 201, 1 So. 51; Riley v. State, 43 Miss. 397. Missouri. — State v. Wingfield, 115 Mo. 42S, 22 S. W. 363, 37 Am. St. Rep. 406; State v. Rogers, 39 Mo. 431; State v. Spain, 29 Mo. 415, State v. Back, 99 Mo. App. 34, 72 S. W. 466. New York. — People v. Polhamus, 8 N. Y. App. Div. 133, 40 N. Y. Supp. 491. South Dakota. — State v. Williams, 11 S. D. 64, 74 N. W. 815. Tennessee. — State v. Hickerson, 3 Heisk. 375. Vermont. — State v. Munger, 15 Vt. 290. Virginia. — Commonwealth v. Smith, 1 Gratt 553. West Virginia. — State v. Chisnell, 36 W. Va. 659, 15 S. E. 412; State v. Ferrell, 30 W. Va. 683, 5 S. E. 155. Wisconsin. — State v. Gummer, 22 Wis. 441. § 643] [NDICTMENTS AND INFORMATIONS. 691 sons" without stating the names of the purchasers or that their names are unknown. 42 So in Georgia ii is decided thai a special presentment under the code as to sales of liquor on election day need not, even as against a special demurrer, allege the name of the person to whom the liquor is claimed to have been sold, given or furnished. 48 And an indictmenl charging that the defendant had retailed twenty glasses or drams of intoxicating liquor to l s. C. 196, 32 S. E. 298, citing State v. May, 45 S. C. 512, 23 S. E. 513; State v. Cassety, 1 Rich. L. (S. C.) 90. • •"•■• Newman v. State 101 Ga. 534, 28 S. E. 1005, citing Ricks v. State, 16 Ga. 600; Springfield v. State, 25 Ga. 474: Binton \. S1 ite, 68 Ga. 322; Carter v. State, 68 Ga. 826; Hill v. Mayor of Dalton, 72 Ga. 31 I ; Williams v. State, 89 Ga. 183, 15 S. E. 552; Redding v. Stat.-. 91 Ga. 231, 18 S. E. 289. 44. Zumhoff v. State, 4 G. Greene (Iowa i 526. 45. Indiana. — Ashley v. State, 92 Ind. 559; McLaughlin v. State, 45 Ind. 338. Maryland. — Capritz v. State, 1 Md. 569. V. braska. — Martin v. State, 30 Xeb. 421, 46 N. W. 618. \< r Jersey. — Flannagan v. Plain- field. 44 X. J. L. 118. Rhode Island. — State v. Doyle, 11 R. I. 574. Smith Dakota. — State v. Boughner, 5 S D. 461, 59 X. W. 736. Tennessee. — State v. Carter, 7 Humph. 158. Texas. — Dixon v. State, 21 Tex. App. 517, 1 S. W. 448. Washington. — Slate v. Bodecker, 11 Wash. 117. 39 Pac. 645. '<:• Llamama. — Doman v. State, 34 Ala. 216. Delaware. — state v. Walker, 3 Harr. 547. ma— Blodget v. State. 3 I d. 103. Iowa. — State v. Allen. 32 [owa 491. Kentucky. — Wilson v. Common- wealth, 14 Bush. 159; Commonwealth \. Benge, 13 Ky. L. Rep. 591. 6 92 INDICTMENTS AND INFORMATIONS. [§ 644 given. 47 So in a recent case in Michigan it is held that in charging one with making a sale in violation of law it is usual and necessary to state to whom the sale was made, and, if all sales were not un- lawful, to show that it was unlawful by stating wherein it was. 48 And in Korth Carolina it has been decided that an indictment for selling or giving away spirituous liquors during a public election should set forth the name of the person to whom the liquor was sold or given. 49 In this connection it may be remarked that under such statutes the sale is generally made unlawful irrespective of the one to whom the sale is made and that this being so it should be sufficient simply to charge a sale without giving the name of the person to whom it was made as in many cases it would be impossible perhaps to allege the name of such person, and, if necessary to allege the name, violations of such laws would be much more different to successfully prosecute. § 644. Allegation as to purpose for which sold. It may be necessary under the statute for a violation of which the defendant is prosecuted to allege in the indictment the purpose for which the liquor was sold. 50 So it is held that an indictment should allege that the liquor was sold to be drank as a beverage where by the statute the offense is a sale of it for such a purpose. 51 And where the statute makes the selling of intoxicating liquors as a beverage an offense, an information charging a person with sell- ing " intoxicating liquors maliciously and willfully" charges no offense either at common law or under the statute. 52 North Carolina. — State v. Stamey, Pac. 650; State v. Humphrey, 40 Mo. 71 N. C. 202. App. 327. Compare Staff v. State, 33 South Carolina. — State v. Couch, 54 Ind. 255, 71 N. E. 165; Common- S. C. 280, 32 S. E. 408. wealth v. Murphy, 155 Mass. 284, 29 .— Drechsel v. State, 35 Tex. N. E. 469. Cr. 580, 34 S. W. 934. 51. Allman v. State, 09 Ind. 387; 47. State v. Schmail, 25 Minn. 308. Dowdell v. State, 58 Ind. 333; State 48. Anderson v. Van Buren Circuit v. Dunlap, 81 Me. 389, 17 Atl. 313; Judge, 130 Mich. 097. 90 N. W. 092. State v. Buckner, 20 Mo. App. 420. i!>. Stale v. Stamey. 71 X. C. 202. 52. State v. Hafsoos, 1 S. D. 382, 50. State v. Shinn, 63 Kan. 038, 60 47 N. W. 400. 5§ 645,646] INDICTMENTS AND [NFORMATU 693 § 645. Stating offense in caption. It is doI accessary to state the offense in the caption it being sufficient if stated in the body of the indictment. 63 And if the name is stated or the offense described in the caption and such statement or description is in conflicl with that given in the body of the indictment, the latter will control. 64 § 646. Indictment must not charge disjunctively. It is said to be elementary that an indictment, information or complaint must not charge the accused disjunctively, so as to leave it uncertain what its relied on as the accusation against him. 55 So an indictment charging that the defendant " did sell or give away " whisky is defective. 53 And also a complaint alleg- ing that the defendant sold "wines, spirituous liquor or other intoxicating beverage," is defective. 57 And a complaint has been held bad which alleged that the intoxicating liquors were kept by the defendant or by some other person with his consent. 58 Hut where the information charged the defendant with keeping a " store or shop " for the sale of liquors it was declared that the 5.1. Williams v. State, 47 Ark. 230, Grey. 2 Gray 501, 01 Am. Dec. 476. 1 S. W. 14!'. Missouri. — State v. Fairgrieve, 29 .".l. .loy,r mi Indictments. § 167. Mo. App. 641. .-„-».. i oyce on Indictments, Sees. 259, Rhode Island.— State v. Colnell, 3 382. R. I. 284. ■I'"'""''"- Raisler v. State, 55 Ala. Wisconsin.— Clifford v. State, 29 04. Connecticut. — Smith v. State, 19 Conn. 493. Wis. 327. Surplusage. — An indictment will not be vitiated by the insertion after Qeorqia. — Maddox v. State, 118 Ga. . . ; . . the disjunctive of an allegation which i- superfluous and may be rejected as surplusage. Joyce mi [ndictments, Sec. 260. 32, it s. E. sue,; Eaves v. State, 113 Ga. 749, 39 S. E. 318; Grantham v. State, 8!) Ga. 121, 14 S. 1'.. 892. Kentucky. — Locke v. Common- wealth, 23 Ky. L. Rep. 740, 63 S. W. 56< Thompson v. State, 37 Ark. 408. 795; Raubold v. Commonwealth, 23 '•'■ Smith v. State, L9 Conn. 40.3. Ky. L. Rep. 735. 63 S. W. 781. But see Morgan v. Commonwealth, 7 Maine.— State v. Moran, 40 Me Gratt (Va.) 592, followed in Cun- 129. ningham v. State, 5 W. Va. 508. Massachusetts.— Commonwealth v. •"*• State v. Moran, m Me. 129. 0«)4 INDICTMENTS AND INFORMATIONS. r§ G47 words store and shop as used in the statute being of equivalent import, the use of the alternative was not fatal. 59 And in Ala- bama a count charging that the defendant " sold spirituous, vinous or malt liquors " has been held sufficient under a code provision permitting such an allegation. 00 And in a case in Wisconsin where a complaint charged the sale of " intoxicating or malt liquors " it was held that the word " or " was used to explain the kind of intoxicating liquors sold and that the complaint was sufficient, but evidence of the sale of any other than malt liquors was held inadmissible. 61 § 647. Where statute is in disjunctive — use of conjunctive. Where a statute makes it a crime to do either of several things disjunctively the same may be embraced in a single count using the conjunction " and " in place of " or " and is not subject to the ob- jection that more than one offense is charged. 62 So it is said in this connection : " Where the legislature for the purpose of sup- pressing vice or preventing a wrong, has, by statute, made the vice or wrong or criminal offense, and, in defining the offense, has specified a series of acts either of which separately or all together may constitute an offense, and has prescribed, as here, the same 59. Barth v. Connecticut, 18 Conn. it has been said that it is permissible 431. where the statute may be violated 60. Cost v. State, 96 Ala. 00, 11 So. in one of several ways, to charge or 435; Powell v. State, 69 Ala. 60. allege conjunctively that the party 61. State v. Boucher, 59 Wis. 477, violated the statute by all the means 18 N. W. 335. set forth in the law; but it is not per- 62. Cranor v. Albany, 43 Oreg. 144, missible, under any circumstances, to 71 Pac. 1042; State v. Beckroge, 49 charge it in the alternative. The S. C. 484, 27 S. E. 658. allegations must be distinct and af- Where a statute enumerates sev- Urinative, and not uncertain nor in eral acts disjunctively, which together the alternative. Joyce on Indict- or separately shall constitute the of- ments, Sec. 382. fense, an indictment thereunder if it An indictment charging the sale of charges more than one of them, which different liquors conjunctively is held it may do even in the same count, good. Eaves v. State. 113 Ga. 749, should do so in the conjunctive, and 39 L. E. 318; Raubold v. Common- if the disjunctive is used, the indict- wealth, 23 Ky. Law Rep. 7:;."). 63 S. ment will be had for uncertainty. So W. 781; State v. Pittman, 76 Mo. 56. § 648] INDICTMENTS AND INFORMATIONS. 695 penalty for the commission of one or all of the acts, i1 i- well tied that the commission of any two or more of them may be al- leged in the same count of an indictment, if conjunctively charged. Although each acl by itself may constitute an offense under the statute, yet if they are all committed by the same person, a1 the same time and place, they are to be considered as parts of the same transaction and collectively constitute a single offei And when a statute is in the disjunctive the acts should be charged in the conjunctive unless they be repugnant.''' 1 And where the offenses are charged conjunctively, a conviction or acquittal may be pleaded in bar of a subsequent prosecution for all or either oi the offenses whether charged separately or together. 65 § 648. Surplusage does not vitiate. It is a general rule that an indictment will not be vitiated by matter which is mere surplusage and that such matter need not be proved. 06 And this rule applies in the case of indictments or informations for violations of the liquor laws. 07 So where an in- dictment in charging an offense as a common seller and alleging a former conviction set out all the essential features of the offense and added the unnecessary words "under the laws for the sup- pression of drinking houses and tippling shops " it was held thai such words were immaterial and could be rejected as such. The court said: " It is merely an incorrect and unnecessary over atate- 63. Morganstem v. Commonwealth, Maine. — State v. Pillsbury, 47 Me. 94 Va. Ts7. 26 S. E. 402. 449; State v. Staples, 45 Me. 320. 64. State v. Fairgrieve, -J 1 ' Mo. Nebraska — State v. Ball, 27 Neb. App. 641, citing state v. Fitzsimmons, 601, 4.". V E. 398. 30 Mo. 236. V York. — People v. Townsey, 5 65. Clifford v. State. 29 Wis. 327. Den. 70, Eodgman v. People, 4 Den. c;<;. Joyce on Indictments, Sec. 263. 235. *>7. Georgia.— Barker v. state 117 . Segars v. State (Tex. Cr. Ga. 428, 13 S. E. 744. App. 1899), 51 S. W. 398. Kentucky.— Commonwealth v. Bel- West Virginia. — State v. Hall, 26 back, lui K.\. 166, 40 S. W. 245, 19 W. Va. 236. Ky. L. Rep. 27s. 696 INDICTMENTS AND INFORMATIONS. [§§ 649,650 inent. All the essential features are found in the count without such statement. The count is perfect without it and not vitiated with it. The super-added words do not mislead any one." 68 And where an indictment in charging the offense stated that an election had been held prohibiting the " sale or exchange " of intoxicating liquors and the result of the election was only to prohibit the " sale " it was held that the words " or exchange " should be treated as surplusage. 09 § 649. Matters of evidence. Where particular facts are to be regarded as matters of evi- dence it is a general rule that they need not be minutely described in charging the offense. The inserting of matters of this kind not only encumbers but in many cases tends to obscure the meaning of the indictment or to make the prosecution more difficult of a successful accomplishment. 70 So charging a sale in violation of the statute may be sufficient without setting forth the details show- ing how the sale was made. 71 § 650. Matters of defense. Matter of defense need not be anticipated by the State so as to require an averment in an indictment of facts which will render them unavailable. 72 So an indictment against a physician for giv- ing a false and fraudulent prescription need not aver that the physician was a "reputable" physician as this is a matter of defense. 73 And it is sufficient to charge the keeping open of a place for the sale of liquor or the actual selling of the liquor as on an 68. State v. Hatch, 94 Me. 58, 46 443; Arrington v. Commonwealth, 87 Atl. 796. Va. 96, 12 S. E. 224, 10 L. R. A. 242. 69. Segars v. State (Tex. Cr. App. 72. State v. Powell, 3 Lea (Tenn.) 1899), 51 S. W. 398. 164. TO. Joyce on [ndietments, § 277. See Joyce on Indictments, Sec. 279. 71. Caldwell v. State, 43 Fla. 545, 7."i. state v. Farmer, 104 N. C. 887, 30 So. 814; Denive v. State, 4 Iowa 10 S. E. 563. §§ 651 652] INDICTMENTS AND INFORMATIONS. 697 election day without stating thai an election was actually held since it would be a matter of defense if no election was held. 74 § 651. Want of a licer Where the act only becomes an offense when done withoul a license the want of a license is an essential element thereof and an allegation of such a fact is necessary to a proper charging of the offense. 75 § 652. Sale to minor — want of consent of parent or guardian. The selling or giving of liquor to a minor may be unlawful only when done without the consent of the parent or guardian and where this is the case the indictment should contain an allegation showing the want of such consent. 76 So an indictment charging a sale to a minor without his parent's consent in writing and not negativing the consent of his guardian is bad on demurrer." 7 And where the statute makes it an offense to sell without the consent of the parent or guardian, negativing authority from the mother is not sufficient. 78 Again under a statute making in an offense to sell 7*. State v. Powell. 3 Lea (Tenn.) 104; State v. Irvine, 3 Heish (Tenn.) 155. ".". Alabama. — Koopman v. State, . Kansas. — State v. l'itzer. 2-". Kan 250; State v. Pittman, in Kan. 593. Massachusetts. -Commonwealth v. Crossley, 162 Mass. 515, 39 N. E. 27S. Minnesota. — state v. Nerbovig, 33 Minn. 480, 24 X. YV. 321. New Hampshire.— State v. Blaisdell, 33 X. II. 388. New Jersey. — Fleming v. New Brunswick, 47 X. J. L. 231; Greeley v. Passaic, 42 X'. J. L. 87. North Carolina. — State v. Holder, 133 N. C. 709, 45 S. E. 862. Texas. — Williamson v. State, 41 Tex. Cr. 401, 55 S. YV. 508. Vermont. — State v. Munger, L5 Vt. 290. Virginia. — Commonwealth v. Hamp- ton, 3 Gratt. 590. Wisconsin. — Sires v. state. 7:; Wis. 251, 41 X. W. 81. re. Parkinson v. state. 1 i \M. L84, 7 1 Am. Dee. 522 X. Compare Frei- berg v. state. 94 Ala. 91, 10 So. 703. 77. State v. Kmeriek. 35 Ark. 324. 78. Newman v. state, 63 Ga. :>■■:;. followed in Ilevman v. State, lit (la. 437. See also Lantzmester v. state. 19 'lex. App. 320, holding that neither of t lie words " father " or " mother '" is equivalent to the word parent. 698 INDICTMENTS AND INFORMATIONS. [§ 653 to a minor without the written " consent or request " an indict- ment charging a sale without the written request and consent is held defective. 79 § 653. Averment as to place generally. It is a general rule, except so far as modified by statute, that an indictment should state the place where the offense was com- mitted so that it may appear that the court has jurisdiction. 80 In this connection an allegation that the offense was committed in a certain ward of a city has been held sufficient without stating the name of the street or the number of the house. 81 And an allega- tion of a sale within a certain town located in a certain county has been held sufficient 82 as has also an allegation that the offense was committed in a certain precinct 83 and likewise a charging of the offense as within the county. 84 Where the offense can only be 79. Commonwealth v. Haderaft, 6 Bush (Ky.) 91. 80. Joyce on Indictments, § 296. Alabama. — Hafter v. State, 51 Ala. 37; Harris v. State, 50 Ala. 127. New Jersey. — Rogers v. State, 58 N. J. L. 220, 33 Atl. 283. New York. — Blasdell v. Hewit, 3 Caines 137. South Dakota. — State v. Donald- son, 12 S. D. 259, 81 N. W. 299. Virginia. — Arlington v. Common- wealth, 87 Va. 96, 12 S. E. 224, 10 L. R. A. 242; Commonwealth v. Head, 11 Gratt. 819. The technical certainty in al- leging time and place, which is de- manded in indictments for felonies, is not required in indictments for mis- demeanors under the liquor laws. State v. Scampini, 77 Vt. 92, 59 Atl. 201. 81. Schwab v. People, 4 Hun (N. V., 520. 82. Connecticut. — State v. Basser- man, 54 Conn. 88, 6 All. 185. Massachusetts. — Commonwealth v. Bennett, 108 Mass. 27 ; People v. Ringsted, 90 Mich. 371, 51 N. W. 519. Minnestota. — State v. Peterson, 38 Minn. 143, 36 N. W. 443. Nebraska. — Peterson v. State, 64 Neb. 875, 90 N. W. 964. New York. — People v. Polhamus, 8 App. Div. (N. Y.) 133, 40 N. Y. Supp. 491. Routh Dakota. — State v. Donaldson, 12 S. D. 259, 81 N. W. 299. 83. Woods v. State (Tex. Cr. App. 1903), 75 S. W. 37. See Bogard v. State (Tex. Cr. App. 1900), 55 S. W. 494. 84. Georgia. — Hussey v. State, 69 Ga. 54. Indiana. — State v. Schreiber, 98 Ind. 184; Werneke v. State, 49 Ind. 202. Kansas. — State v. Allen, 63 Kan. 598, 66 Pac. 628. North Carolina. — State v. Emery. 98 N. C. 668, 3 S. E. 636. §§654,655] INDICTMENTS AND INFORMATIONS. 699 committed in a certain municipal division, which ie less than the county within the jurisdiction of the court, the oame or description of such division and the fad that the offense was committed therein should be set forth in the indictment. 86 § 654. Averment as to place continued. A more specific averment of the location of the place is in some cases essential in order to bring the offense within the terms of tin- statute creating it. 80 So where the punishment depends upon the place where the act constituting the offense was committed, then place is essential and should be alleged. 87 And where the statute makes it an offense to sell liquor within certain limits of some in- stitution, then an allegation as to place is essential, as when within a certain distance of a church, 88 or of a college or institution of learning, 89 or a voting precinct. 90 In case of a sale within a cer- tain distance of an academy, college, university or institute of learning it is sufficient to use the language of the statute, giving the name, if any, which the institution is known by. 91 § 655. Averment as to place — description of building. As a general rule the building, where the offense was committed Texas.— Cochran v. State, 26 Tex. 190.3), 76 S. W. 459. 678. 87. Hafter v. State, 51 Ala. 37, Wisconsin. — State v. Hiekok, 90 following Harris v. stale, ">u Ala. Wis. Itil, 62 N. W. 934. 1:27. and so holding where the amount 85. Seifried v. Commonwealth, 101 of the fine in case of a conviction waa Pa. St. 2ti0. based on a classification of cities and • s <5. Alabama. — Gilmore v. State. towns according to their population. L25 Ala. 59, 28 So. 382; Block v. * s - Gilmore \. State, 125 Ala. 59, state. 96 Ua. 493. 28 So. 382; Block v. Stale. 66 Ala. Kentucky. — Commonwealth v. 493. Slaughter, 12 Ky. Law Rep. 893. s! »- Ragan v. state. 67 Miss. 332, Mississippi. Ragan v. State. 67 7 So. 280. See State.v. Odam, 2 Lea Miss. 332, 7 So. 280. (Tenn.) 220 holding it sufficient to New Jersey. — Kelty v. state. t;i X. follow the language of the Btatute J. L. 4n7. 39 Ail. 711. without naming the institution. Tennessee. — State v. Odam, 2 1 i 9©. Gage v. State (Tex. Cr. App. 220. I - W. 459. Texas.— Gage v. State (Cr. App. M. Blackwell v state. 36 Ark. 178. 700 INDICTMENTS AND INFORMATIONS. [§ 656 need not be alleged. 92 But where the offense charged is the main- taining of a nuisance, it is held that the information should give a particular description of the place where the alleged nuisance is maintained in order to authorize proceedings to abate it upon a conviction. 93 But where there is a lengthy and explicit descrip- tion of the place where it is alleged a nuisance was maintained, an incorrect statement as to one of the numerous particulars in the description, which cannot possibly mislead the defendant, nor affect his interests prejudicially, is not fatal. 94 Where the in- formation charges the maintenance of a nuisance at one specified building it will not be held to mean two buildings not connected though on the same lot so as to render admissible proof of a nui- sance at the other building. 95 § 656. Charging time of offense — generally. The indictment must be sufficiently certain in charging the offense and without setting forth some time as that of its alleged commission there cannot be said to be the certainty required. 96 " While time is not an ingredient of the crime of unlawfully selling liquors, except as to prohibited days and hours, and when alleged need not perhaps be proved exactly as alleged, yet the time of the commission of the offense should be alleged for the purpose of apprising the defendant when it is claimed he committed such 92. Iowa— State v. Becker, 20 Iowa 95. State v. Poull, 14 N. D. 557, 438. 105 N. tW. 717. Michigan. — People v. Aldrich, 104 96. Indiana. — State v. Zeitler, 63 Mich. 455, 62 N. W. 570. Ind. 441. Nebraska. — Peterson v. State, 64 Massachusetts. — Commonwealth v. 875, 90 N. W. 964. Adams, 1 Gray 481. Veto York. — Schwab v. People, 4 Texas. — Thurman v. State, 45 Tex. Hun (N. Y.) 520. Cr. 569, 78 S. W. 937. Texas. — Bunch v. Republic, 1 Tex. Vermont. — State v. O'Keefe, 41 Vt. 608. 691 ; State v. Karnedy, 36 Vt. 563. 93. State v. Poull. 14 N. D. 557, West Virginia.— State v. Bruce, 26 105 X. W. 717. W. Va. 153. 94. state v. Reno, 41 Kan. 674, 21 See Joyce on Indictments, § 309. Pae. 803. §657] INDICTMENTS AND INFORMATIONS. 7m crime in order thai he may prepare his defense and also that he may use it, as before suggested, as a plea in bar." :,T Where the in- dictment charges the commission of the offense on a certain day. stating the month and year, it is qoI defective because the words " in the year of our Lord," or the letters " A.D." are nol added. 98 But a complaint alleging the time of sale as "on or about" a certain date has been held had, on a motion in arrest of judgment." § 657. Precise time not essential. It is not necessary that the precise time of the commission of the offense be stated, it being sufficient if it is shown to have been within the statute of limitations, except where time is an indis- pensable ingredient of the offense. 1 So in liquor prosecutions where time is not of the essence of the offense, the precise time need not be stated. 2 So under an indictment charging the sale of liquors without a license and contrary to law where a statute provides that under such an indictment " any act of retailing in violation of law may be proved," time is not essential and a conviction may be had if a sale at any time within the time of the statute is proved. 3 07. People v. Olmsted, 74 I Inn (X. Y.) 323, 26 X. V. Supp. 818, per Herriek, J., citing People v. Stockbug, 50 Barb. (N. X.) 57:;. os. Commonwealth v. Traylor, 22 K.v. Law Rep. 97, 45 S. W. 356, 450. See .Joyce on Indictments, § 309 n. !»:►. si ite v. O'Keefe, 41 \'t. 691. See Joyce on Indictments, §§ 313 and 314. as to use of the words "on or about." 1. Joyce on Indictments, § 310. 2. See State v. Allen. 63 Kan. 59"8, 66 Pac. 628 ; People v. Polhamus, 8 App. Div. (X. Y.) 133, 40 X. Y Supp. 401; Arlington v. Common- wealth, s: Va. 96, 12 S. K. 224 age v. Commonwealth, si Ya. 582, 5 S. E. 563. 3. Olmstead v. State. 92 Ala. 64, 9 So. 737. 4. Joyce on Indictments, § 322. •"»• Commonwealth v. Gardner, 7 Gray (Mass.) 494. Per Dewey. .1.. citing Commonwealth v. Elwell, 1 Gray (Mass.) 163; Commonwealth v. Wood. 4 1 .'r.!\ - Mass.) 11. e. Our House No. 2 v. State, 4 Greene, (Iowa) 172: state v. Cofreu, 48 Me. 4(i4 : Commonwealth v. Man- ning, 164 Mass. .".17. 42 X. K. 95; state v. [ngalls, 59 N. II. 88. Where the offenses are alleged to liave been committed during a speci- fied period of time H is a general rule that a conviction i> a bar to a subsequenl prosecution covering the same period for acts provable under 7()i> INDICTMENTS AND INFORMATIONS. [§§ (558,059 § 658. Offense consisting of succession of acts — charging with a continuando. It may be stated generally that where an offense consists of a succession of acts an indictment therefor may properly charge that the offense was committed on a given day and " on divers other days " between that day and the day of the finding of the indict- ment. 4 In this connection it is said in an early case in Massa- chusetts : " If this were a mode of criminal pleading, now for the first time presented for the consideration of the court, it would certainly deserve great consideration, whether it is sufficiently certain and precise to satisfy the rules of law upon that subject. But such averments are allowable in many cases, and almost from the necessity of the case, as in case of a common barrator, common scold, common brothel, etc., and we consider that this form of in- dictment has long been allowed in practice upon this and prior analogous statutes." 5 So where an offense charged is continuous as a prohibited traffic it may be laid with a continuando. Q And where an offense is so charged it has been decided that the defend- ant can only be convicted of one offense, and that if it is sought to convict him of more than one violation the statement of the cir- cumstances of each should be separately charged. 7 § 659. Time of essence of offense — sale on Sundays. When time is of the essence of the offense, as when the statute prohibits the doing of an act on certain days or dates, the indict- ment should show that the alleged violation of law was of that day or date. 8 Thus where the prosecution is for the violation of a statute prohibiting the sale of liquor on Sunday the indictment should bring the alleged offense within the operation of the statute by alleging that the sale was made on that day. 9 And it is suifi- the first prosecution. People v. Fol- 8. Joyce on Indictments, Sec. 312. hamus, 8 App. Div. (N. Y.) 133, 40 o. Robinson v. State, 38 Ark. 548; N. Y. Supp 491. Kroer y p e0 pi e) 73 ni. 294 ; Slate v. 7. South v. Commonwealth, 79 Ky. Heard, 107 La. GO, 31 So. 384; Com- 493. s 660] [NDICTMENTS AND INFORMATIO 703 cient to allege that the offense waa committed on a Sunday, the particular hour on Sunday when it was committed doI being neces- sary to allege. 10 And in this connection ii has been decided .suffi- cient to allege that the violation took place on some Sunday, the particular Sunday not being important. 11 Again, charging the offense to have been committed on a certain day of a month and year, "said day being the first day of the week, commonly called Sunday," is a proper allegation as to the offense having been com- mitted on Sunday. 1 - But under a statute providing that saloons " shall be closed on the first day of the week commonly called Sunday " in charging the offense of keeping open on Sunday, it is not necessary to allege that the saloon was kept open for the purpose of doing a prohibited business. 13 § 660. Sales on election day. Where sales are prohibited on election day the indictment should contain an averment showing that the sale was made on such a day, 14 and that the election was held by lawful authority. 15 In describing the offense as committed on an election day it is essential under some statutes to state the object and purpose of the elec- tion."'' And in stating the purpose of the election the fact that all the officers to be elected were not named in the complaint and are in the information is no1 a variance rendering the information fective. 17 If it states the purposes for which an election was to be monwealth v. McEiernan, 128 Mass. *-*• Hewman v. State. 101 Ga. 534, AU 2S S. K. 1005; Slate v. Stanley, 71 10. State v. Heard, 107 La. 00, 31 x. C. 202. s "- 384. is. ,;,.!!, v . state, 31 Tex. Cr. 514, ii. Robinson v. State, 38 Ark. 548. .,, s _ w ,,„,. Jauka v St . (t( , i ._,,, Tex 12. state v. Brann, 83 Mo. 180, fol- App .,.,.. ,- s> w sl - 16. Borches v State, 33 Tex. Cr. 96, -Jr. s. W. 423. lowing State v. Roehm, 61 Mo. 82, which was affirmed in state v. Block, 61 Mo. 117. 13. State v. Donaldson, 12 S. D. ,T - Steinberger v. State, 35 Tex 259, si N. W. 299. Cr. 492, 34 S. W. 617. 7(U INDICTMENTS AND INFORMATIONS. [§ G61 held in the alternative and no such election was authorized by statute, it has been held in Texas that the information is bad. 18 § 661. Knowledge — intent. It is a generally accepted rule that where the statement of the act necessarily includes a knowledge of the illegality of the act, no averment of knowledge is required, but where by statute knowl- edge is an essential element of the offense it is essential to the validity of an indictment that there should be an averment of knowledge therein in the description of the offense. 19 Ordinarily in indictments under the liquor law an averment of knowledge is not necessary. 20 In this connection in the case of an indictment for maintaining a liquor nuisance the court said : " If the evidence should show that they did the acts charged they could not avoid conviction by saying they did not know they were doing wrong, or were ignorant that the tenements they kept and maintained under such circumstances were common nuisances. The statute does not require the state to allege or prove knowledge of the law, knowl- edge on the part of the respondents, nor their knowledge that the acts and conditions charges, made their tenements common nui- sances. Their knowledge of these matters is presumed. The state would not need to prove their knowledge of the unlawfulness of their conduct, and hence the indictment need not allege it." 21 So where a statute makes it an offense to sell to minors and persons of known intemperate habits it is sufficient to charge the offense 18. Renter v. State, 43 Tex. Cr. Pennsylvania. — Commonwealth v. 572, 07 S. \V. 502. Sellers, 130 Pa. St. 32, 18 Atl. 541, 19. Joyce on Indictments, Sec. 33G 542. and 337. Rhode Island. — State v. McGough, 20. Indiana. — Struble v. Xodwift, 14 R. I. 63. 11 Ind. 64. Texas.— Jones v State, 4G Tex. Cr. Kentucky.— Hinkle v. Common- 517, 81 S. W. 49. wealth, 25 Ky. L. Rep. 313, 75 S. W. Vermont. — State v. Benjamin, 29 231. Vt. 101. Maine. — State v. Stanley, 84 Me. 21. State v. Ryan, 81 Me. 107, 16 555, 24 Atl. 983. Atl. 400. Per Emery, J. § (j<; L >J INDICTMENTS AND [NFORMATIO 705 in substantially the language of the act, the words "knowingly and wilfully" being unnecessary." And where a statute made it an offense to sell intoxicating liquors contrary to its provisions it was decided that as the statute did doI use the word u wilfully" an indictment need not charge that sales were " wilfully " made. 23 Again though the statute made it an offense to sell liquor " if in- tended to be drank " on the premises an allegation of a sale of liquor "to be drank" was held sufficient, it being declared that the words " to be drank " meant the same as " with the intent " to be drank." 25 Again, the unlawful intent with which intoxicating liquors are kept may be presumed by the recent prior sale by the defendant of the same kind of liquors in violation of law. 26 Where knowledge of the minority of the purchaser is essential it has been held to be sufficient to allege that the defendant did then and there unlawfully and knowingly sell intoxicating liquors to a minor. 27 § 662. General rule as to charging in language of statute. It may be stated generally that it is ordinarily sufficient for an indictment or information to charge a statutory offense in the language of the statute where by so doing the accused is suffi- ciently apprised of the nature and cause of the accusation against him. 28 And this doctrine is applicable in charging violations of the liquor law. 29 So in the case of an indictment for maintaining 22. Commonwealth v Sellers, 130 26. Hans v. State, 50 Neb. 150, Pa. St. 32, 18 All. 541, 542. 6!) N- W . 838- 24. State v. Abbott, 31 N. II. 434. .,_ T c . . Ar „ n 2-. .Toms v. State, 4G Tex. Cr. 25. Bilbro v. State, 7 Humph. -,- q, « ... , () (Tenn.) 534. . ,, . . ,, , , - , , j.j 28. Joyce on Indictments, Sec. An allegation that defendant did 37] 372 "keep for Bale one pint <>f cider ' was held equivalent, to an allegation that 21K Indiana— State v. Hoard, 123 he kepi one pinl of cider with intent II " 1 '■'•'■ '"• x |: - 972; skinner v. to sell the same, it being declared State, 120 [nd. 1-27. 22 N. E. 115. unnecessary to further allege the in- Iowa. — Zumhoff v. State, 4 Greene tent. State v. Prescott, 67 N. H. 203, 526; Our House No. 2 v. State, 4 30 Atl. 342. G Greene, 172. TUG INDICTMENTS AND INFORMATIONS. [§ 662 a liquor nuisance it is sufficient to charge it in the language of the statute creating the offense, 30 as is also the case in charging an unlawful sale of liquor, 31 or the keeping of a place where liquors are unlawfully sold or kej^t. 32 So an information for keeping a place where intoxicating liquors are sold in violation of law is sufficient if it states the offense in the language of the statute. 33 And where by statute it was made an offense to sell in a local option county " alcoholic, spirituous, malt or intoxicating liquors or other drinks which if drunk to excess will produce intoxication," an accusation following substantially this language was held suffi- cient, it not being necessary to specify the particular kind of liquor. 34 Again, this rule as following substantially the language of the statute also applies in the case of a prosecution under a town ordinance. 35 And in an information charging a statutory crime, a negative averment may be in the words of the statute or in words of equivalent meaning. 56 And substantial compliance with the statute being sufficient and the fact that the indictment may be Kansas. — State v. Looker, 54 Kan. 227, 38 Pac. 288. Michigan. — People v. Telford, 56 Mich. 541, 23 N. W. 213. Minnesota. — Mankato, City of, v. Arnold, 36 Minn. 62, 3J N. W. 305. Missouri. — City of, Louisiana, t. Anderson, 100 Mo. App. 341, 73 S. W. 875. Nebraska. — Peterson v. State, 64 Neb. 875, 90 N. W. 964. Texas. — Eisner v. State, 30 Tex. 524; Burch v. Republic, 1 Tex. 008; Jelinek v. State (Tex. Civ. App. 1908 i, 115 S. W. 908. Wiscinsin. — Boldt v. State, 72 Wis. 7. 38 X. \V. 177. 30. Commonwealth v. Ferden, 141 Mass. 28, 6 X. E. 239; Com- monwealth v. Ryan, 136 Mass. 436. 31. Cost v. State, 96 Ala. 60, 11 So. 435; Roberts v. State 20 Fla. 300, 7 So. 861; State v. Cottle, 15 Me. 473; People v. Paquin, 74 Mich. 34, 41 N. W. 852. 32. Arkansas. — State v. Adams, 16 Ark. 407. Connecticut. — Rawson v. State, 19 Conn. 292; Barth v. State, 18 Conn. 432. Indiana. — State v. Hoard, 123 Ind. 34, 23 N. E. 972. Iowa. — State v. Price, 75 Iowa 243, 39 X. W. 291. Rhode Island. — State v. McGough, 14 R. I. 63. 33. Anderson v. Van Buren Cir- cuit Judge, 130 Mich. 697, 90 N. W. 692. 34. Maddox v. State, 118 Ga. 32, 44 S. E. 806. 35. Woods v. Town of Pineville, 19 Oreg. 108, 23 Pac. 880. 36. State v. Scampini, 77 Vt. 92, 59 Atl. 201. § (;(i 3] [NDICTMENTS AND [NFORMATIONS. 707 defective in matters of form will qoI vitiate it where such defi cannot prejudice the rights of the accused. 3 ' § 663. Exceptions in statute— rule as to. The general rule as to negativing an exception in charging a statutory offense is that where the subject of any exception is found in the enacting or prohibitory clause, it must be included by aver- ment in the pleading, but if it is found in a separate substantive clause or in a subsequent statute, and is not an essential part of the description of the offense it is a matter of defense and need not be negatived. 38 So it is said : " It is a rule in both civil and criminal pleadings that, where an action is predicated upon a statute to which there is an exception or proviso, it is sufficient for the pleader to state only so much as will make out a prima facie case ; and, if the proviso or exception be found in a separate section or in a subsequent substantive enactment, it is a defense and should be left to the other party; but if it be matter of exception con- tained in the enacting or prohibiting clause, it is a part of the thing prohibited, and the recording must show that this matter of ex- ception does not cover the act complained of." 39 Indictments under the liquor laws are subject to this general rule. 40 In such a *7. Zumhoff v. State, 4 G. Greene Indiana. — Kuiser v. State, 9 Ind. (Iowa) 526. 543. 88. Joyce on Indictments, § 390. Iowa. — State v. Van Vlict, 92 Iowa »». State v. Van Vlict. 92 Iowa, 475, 61 X. W. 241, State v. Curley, 476,61 N. W. 241. Per Deemer, J., 33 i, ma , 359. 40. Alabama. — Carson v. State, G9 Maine. — State v. Keen, 34 Me. Ala. 235. 500. Arkansas.— State v. Mnllins, 67 Maryland.— Bode v. State, 7 Gill Ark. 422. 55 S. W. 211. ... Ji; Connecticut. — State v. Wadsworth, 30 Conn. 55. Florida. — Beaumel v. State, 26 I'll "1 7 So 371 v ' w Hampshire. — State v. Mc G eor ^a._Tigner v. State,119Ga. Glynn, 34 X. II. 422: state v. Abbott, 114, 45 S. E. 1001. :!1 N '- H - 434 - Illinois.— Mitzker v. Teople, 14 111. S '■ York.— Jefferson v. People 101. 101 X. Y. 19, 3 X. E. 797. Missouri.— State v. Buford. 10 Mo. 03. 70S INDICTMENTS AND INFORMATIONS. [§ 664 case an unnecessary allegation negativing an exception need not be proved but will be treated as surplusage. 41 § 664. Exceptions in statute — application of rule. This rule has been applied in the case of exceptions as to drug- gists, 42 manufacturers of wines from grapes grown by them, 43 sales for particular purposes, such as for sacramental, mechanical, chemical, medicinal or culinary purposes, 44 and in the case of ex- ception as to persons appointed as town or city agents to sell for certain purposes. 45 So an indictment under an intoxicating liquor law making it a misdemeanor to have open or unlocked any door " to the room where any liquors are sold or kept for sale during the hours when the sale of liquors is forbidden, except where necessary for the egress or ingress of the person holding the liquor tax certifi- cate authorizing the traffic in liquors at such place, or members of his family, or his servants, for purpose not forbidden by this act," should negative the exception in the statute as to the necessity of having such a door open or unlocked. 46 Virginia. — Commonwealth v. Hill, 43. State v. Mullins, 67 Ark. 422, 5 Gratt 682. 55 S. W. 211. Ordinarily exceptions in the opera- 44. Brutton v. State, 4 Ind. 601. tion of a law need not be negatived Where a statute provided for a in an indictment unless the exception license " to sell wine and spirit- be made in the very act defining its uous liquors, for medicinal, mechan- offense. Jelinek v. State (Tex. Civ. ical and chemical purposes, and for App. 1908), 115 S. W. 908. no other use or purpose" an indict- 41. Tigner v. State, 119 Ga. 114, ment was held bad which alleged 45 S. E. 1001. that the defendant, being licensed to 42. Baeumel v. State, 26 Fla. 71, ? sell for these specific purposes, did So. 371; State v. Jques, 68 Mo. 260. unlawfully sell one gallon of spirit Where a statute creating an of- uous liquors, contrary to the form of fense makes an exception to its the statute, but did not aver that the operation, as where druggists are sale was not for medicinal, mechan- excepted, a complaint thereunder ical or chemical purposes. State v. should show that the accused does Abbott, 31 N. H. 434. not fall within its operation. Peo- 45. State v. Keen, 34 Me. 500. pie v. Telford, 56 Mich. 541, 23 N. 46. People v. Lupton, 52 Misc. R. W. 213. (N. Y.) 336, 103 N. Y. Supp. 172. 88 665,666] [NDICTMENTS AND INFORMATIONS. 711!) § 665. Duplicity. It is a general rule of criminal pleading that the charge again-r the accused must not be stated in such a manner as to render the indictment subject to the objection of duplicity which it said to be fault in all pleading in that it tends to confusion and the mul- tiplication of issues. 47 This general rule is applied to indictments for a violation of the liquor law. 48 So where a statute makes it unlawful to sell in less quantities than one gallon and also declares it unlawful for the person selling to suffer the same to be drank in and about the house, a count in an indictment charging that the defendant sold in less quantities than one gallon and suffered the same to be drank in his house is bad for duplicity. 49 And an in- formation charging the respondent in the same count with a sale of liquor to a specified person, and with keeping a saloon where intoxicating liquors are sold and furnished as a beverage in viola- tion of the provisions of the local option law is bad for duplicity. 50 § 666. Indictments not duplicitions. Where an offense consists of several distinct acts, which are in fact to be construed when taken together as one continuous act, such acts may be charged in an indictment without rendering it duplici- tous. 54 And a count in such an indictment charging the sale of 47. Joyce on Indictments, § 392. Nebraska.— State v. Ball, 27 Neb. is. Indiana.— Henry v. State, 113 (501, 43 N. W. 398. Ind. 304, 15 N. E. 593. Ohio.— State v. Conner, 30 Ohio Ioica. — State v. Schnler, 100 Iowa st 4(1 - 111, 80 N. W. 213. ' ' . ' . _, . _ -_ „ _._ South ( urolina. — State v. Beck- " 7 M: ; «' V" n v 'oge, *» & C. 484, 27 S. E. 658. Massachusetts.— Commonwe<h v. ,™ r.o m t^ oon Tennessee. — Webb v. State, 11 La. l£o, 158 Mass. 199, 33 N. E. 339 j Commonwealth v. Dolan, 121 Mass. 662 - 374; Commonwealth v. Curran, 119 Virginia. — Mbrganstern v. Coin- Mass. 206. owealth, 94 Va. 787, 26 S. E. 402. Michigan. — People v. Aldrich, 104 4». Miller v. State, 5 How (Miss.) Mich. 455, 62 N. W. 570; People v. 250. Wade, 101 Mich. 89, 59 X. W. 138. so . Peoplt> v K(V])01 . 9? ^ L -, Montana. — State v. Marion. 14 Mont. 458, 36 Pac. 1044. followed in 56 • • 5 - State v. MeGinnis, n Mont 462, 3G 51 " Commonwealth v. Dunn. Ill Pac. 1046. Mass. 126. 710 INDICTMENTS AND INFORMATIONS. [§ 666 divers quantities of different sorts of liquors, to divers citizens of the State and to divers persons unknown, cannot be objected to on error as a count embracing more than one offense ; the whole will be deemed a single transaction. 52 And an information charging that defendant " did unlawfully sell beer to persons unknown," was held in effect to charge one sale to several persons jointly, and hence not to be bad for duplicity under an ordinance making each separate act of selling an offense. 53 An indictment may also in different counts charge the same offense as committed in different ways and not be subject to the objection that it charges different offenses. 54 So where the indictment charged the defendant in one count with violating the sabbath by selling whisky and in another with selling alcohol on the same day, it was decided that it charged but one offense committed in two different modes. 55 And where a nuisance may be committed by any one of several unlawful acts an indictment is held not to be bad for duplicity in charging the offense to have been committed by more than one of such acts. 56 Again, where an indictment charged the defendant with but one unlawful sale of intoxicating liquor to be drunk on the premises where sold, it was held not to be bad for duplicity merely because of uncertainty in the description of such premises as " the house, outhouse, yard ; garden and the appurtenances thereunto belong- ing " of the defendant. 57 And under a statute providing that all saloons, restaurants, bars in hotels or elsewhere, and all places ex- cept drug stores where any of the liquors mentioned in the act are sold or kept for sale shall not be open on Sunday, an information charging defendant with keeping open his " saloon and bar " on Sunday, in violation of the statute, such " saloon and bar " being a r,2. People v. Adams, 17 Wend. 55. Bridges v. State, 37 Ark. 224. (X. Y. ) 47.">. see also Stoss v. State, 56. State v. Baughman, 20 Iowa, :; Mo. '•»: Endleman v. United States, 497. See also State v. Lang, 03 Mo. 86 Fed. R. 450. 215. 53. State v. King, 37 Iowa 402. 67. Stout v. State, 93 Ind. 150. 54. Pope v. People, 20 111. App. 44. § 667] IXDKTMKXTS AND IXF( ULMATIOXS. 711 place where the liquors mentioned in the statute arc sold, is not objectionable as charging more than one offense. 68 § 667. Joinder of offenses. In determining what offenses may be charged, it has been decided that kindred offenses which are generic in kind growing out of the same act may be charged in the same indictment pro- vided they be incorporated in separate counts. And different of- fenses may be joined in the same indictment in different counts, if the offenses are subject to the same punishment. So it is a gen- erally accepted rule that two offenses, committed by the same per- son, may be included in the same indictment, in different counts, where they are of the same general nature, and belong to the same family of crime and where the mode of bail and nature of the pun- ishment, are also the same, although they may be punishable with different degrees of severity. 59 Offenses may be so charged in prosecution for violation of the law as to intoxicating liquors. 90 Where offenses are so charged in separate counts it has been de- cided that the trial court may in its discretion grant an application that the state elect on which count it will proceed. 61 And a ruling denying such a motion is held to be reviewable without being as- signed as error on a motion for a new trial. 62 68. State v. Donaldson, 12 S. D. -1 X. \Y. 299. 59. Joyce on Indictments, § 394. CO. Georgia. — Williams v. State, 107 Ga. 693, 33 S. E. 641. Iowa. — State v. Ruferty, 70 Iowa 160, 30 X. W. 391, following State v. Howorth, 70 Iowa. 157, 30 N. W. 389; Walter-; v. State, 5 Iowa 507. Kansas. — State v. McLaughlin, 47 Kan. 1 13, 27 Pac. 840. Maryland. — State v. Blakeney, 96 Md. 711, 54 Atl. 614. Nebraska. — Hans v. State, 50 Neb. 150, 69 X. W. 838. Tennessee. — Tilbery v. State. 10 Lea 35. Virginia. — Peer's Case, 5 Gratt. 674. 61. State v. Blakeney. 96 Md. 711. 54 Atl. 614. 62. Hans v. State, 50 Neb. 150, 69 X. W. 83S. 712 EVIDENCE. [§ 668 CHAPTEK XXV. EVIDENCE. Section 668. Burden of proof generally. 669. Writings, documents and records as evidence. 670. Evidence as to license. 671. Circumstantial evidence. 672. Circumstantial evidence continued. 673. Whether liquor intoxicating — burden of proof, 674. Whether liquor intoxicating — evidence as to. 675. Evidence as to kind of liquor. 676. Evidence as to place. 677. Evidence as to time. 678. Sales on Sunday. 679. Evidence as to keeping open on Sunday. 680. Intent, knowledge or good faith on part of defendant. 681. As to keeping place for unlawful selling — liquor nuisance. 682. As to liquor kept for unlawful sale. 683. License from United States. 684. As to sales to prohibited classes. 685. Burden of proof — defenses. 6S0. Burden of proof — license or authority to sell. 087. As to violation of instructions by agent. 688. Sale by an agent — evidence showing may be sufficient. § 668. Burden of proof generally. It is incumbent upon the prosecution to introduce evidence to show that the defendant has committed the offense charged against him. 1 So where it is alleged that the defendant was not a person 1. Henry v. State, 01 Ark. 490, 45 Cr. App. 56, 44 S. W. 67, 109, S. W. 499: State v. Findley, 45 Gaioechio v. State. 9 Tex. App. 387. Iowa 435: Cheadle v. State, 4 Ohio See also cases cited in subsequent St. 477 : Benson v. State, 39 Tex. sections in this chapter. § 009] EVIDENCE. 713 " lawfully and in good faith engaged in the business of a druggisl " it is incumbent upon the .state to prove such allegation. 2 And where the statute prohibits a sale by a licensed dramship keeper on a Sunday, the state has the burden of showing that a defendant indicted under such a statute was a Licensed dramshop keeper. 3 But it has been decided that the state is not required to prove negative allegations because if the defendant comes within an exception or proviso he has the means in his power to show it, whereas if this character of proof were required of the state great inconvenience would follow. 4 § 669. Writings, documents and records as evidence. In a prosecution for violation of the law in making prohibited sales applications for liquor are admissible in evidence against a defendant. 5 And by Code in Iowa the written request for liquors is admissible in evidence in a prosecution against a pharmacist for unlawful sales. 6 And upon the question of illegal sales by a phar- macist, reports of sales made by him are admissible in evidence against him. 7 And evidence is admissible of the contents of a record which such a person is required by law to keep. 8 So a police officer who has inspected a register which a druggist is required by law to keep for the purpose of recording sales of liquor made by him may testify as to entries therein which he observed on an inspection of the same. 3 Again, an examined copy from the bo of a collector of internal revenue showing the payment of the -'. State v. Tanner, 50 Kan. 305, c. State v. Gregory, 110 Iowa 024, 31 Pac. 1096. 82 .V. W. 335. 8. Stair v. Kurtz, 64 Mo. App. gee a]g(> g^ y> Th on> 74 L23 V , , . . ,„ rr . Iowa, 119, 37 N. W. 104. 4. Archer v. State, 10 Tex. App. 4S;._> 7. State v. Thompson, 74 Iowa ">• Stat,- v. Huff, 70 [owa 2(10, 40 119, 37 X. \V. 104. X. \V. 720: State v. Cummins, 70 s. stale v. Shelton, 16 Wash. 590, [owa 133, 40 N. W. 121: state v. |S pa State v. Schmidt, 34 Kan. 399, 11. State v. Beaumer, 87 Me. 8 Pac. 867; State v. Schweiter, 27 214, 32 Atl. 881. Kan. 499. 12. United States v. Angell, 11 17. State v. Barnett, 110 Mo. App. Fed. 34. 592, 85 S. W. G13. 13. State v. Barnett, 110 Mo. App. See Jordan v. Nicolin, 84 Minn. 592, 85 S. W. G13. 370, 87 N. W. 910. 14. State v. Peterson, 38 Minn. A license to make one class of 143, 36 N. W. 443, followed in State sales is not admissible in evidence in v. Sannerud, 3S Minn. 229, 36 N. W. behalf of a defendant for making 447; State v. Olson, 38 Minn. 150, sales not covered by his license. 36 X. W. UQ. Lucio v. State, 35 Tex. Cr. 320, 33 15. Mayson v. City of Atlanta, 7? S. W. 358. Ga. 662. See also State v. Schmidt, l s « Commonwealth v. Rourke, 141 34 Kan. 399, 8 Pac. 867. People v. Mass. 321, 6 N. E. 383. § 071] EVIDENCE. 715 to some irregularity in connection with the preliminaries to its 19 issuance.' § 671. Circumstantial evidence. Direct proof of a violation of the law is not in all cases essential, but circumstantial evidence is in many cases sufficient to procure a conviction. 20 So it is proper to show the manner in which the place was fitted up and the presence of a bar, glasses, and bottles upon the premises. 21 And it may be shown that on several occa- sions intoxicating liquors had been consigned to the defendant. 22 So it was held proper to admit the testimony of railroad and transfer agents that during the period in which a defendant was charged with carrying on the business of a liquor dealer without a license they at different times received and delivered to him large quantities of intoxicating liquors, consigned to him. 23 And a bill from a wholesale dealer for goods shipped to the defendant may be admitted in evidence. 24 l». State v. Evans, 83 Mo. 319. 20. Iowa. — State v. Wambold, 74 Iowa 605, 38 N. W. 429 Kansas. — State v. Schoenthaler, 63 Kan. 148, 05 Pac. 235. Nebraska. — McManigal v. Seaton, 23 Neb. 549, 37 N. W. 271. New York, — People v. Hulbut, 4 Den. 133, 47 Am. Dec. 244. Oklahoma. — Utsler v. Territory. 10 Okla. 163, 62 Pac. 287. is.— Pike v. State, 40 Tex. Cr. App. 613, 51 S. W. 395. 21. Ioica. — State v. Wambold, 74 Iowa 605, 38 X. W. 429. Maine. — State v. Burroughs, 72 Me. 479. Massach usetts. — Commonwealth v. Lufkin. 167 Mass. 553, 16 X. E. 109: Commonwealth v. Collier, 134 Mass. 203. Michigan. — People v. Hicks, 79 Mich. 457, 44 N. W. 931. Missouri. — Kirkiwood v. Anten reith, 11 Mo. App. 515. New Hampshire. — State v. Har- rington, 69 N. H. 496, 45 Atl. 404. New York. — People v. Hulbut, 4 Den. 133. 47 Am. Dec. 244. 22. Alabama. — Mcintosh v. State, 140 Ala. 137, 37 So. 223. Arhnasas. — Hanlon v. State, 51 Ark. 186, 10 S. W. 265. Indiana. — Klepfer v. State, 121 Ind. 491, 23 \'. E. 287. Massachusetts. — Commonwealth t. Neylon, 159 Mass. 541, 34 N. E. 1078. Vermont.— State v. Killing, 63 Vt, 636, 22 Atl. 013. 28. Hanlon v. State. 51 Ark. 186, 10 S. W. 265. -»• Commonwealth v. Neylon, 159 Mass. 541, 34 N. E. 1078. 7i(j EVIDENCE. [§§ 672,673 § 672. Circumstantial evidence continued. Evidence of the finding of liquor in the possession of the accused is also admissible in this connection and is by statute in some states made prima facie evidence of guilt when found under certain circumstances. 25 And a statute so providing is constitutional. 26 And it is also proper to show that persons were seen to enter de- fendant's place sober and afterwards to come out in an intoxicated condition, 27 or that they entered in a quiet and orderly manner and left in a disorderly manner, making noise and disturbance or using profane language, 27 or that the place was frequented by an unusual number of people. 29 And it has been held admissible to show the habits of the buyer as to the use by him of intoxicating liquors, on a prosecution for maintaining a liquor nuisance. 30 And evidence of efforts to conceal liquor on the approach of an officer may also be introduced. 31 § 673. Whether liquor intoxicating— burden of proof. Where the indictment charges a defendant with the sale of in- toxicating liquors it is incumbent upon the state to either prove that the liquor in question was one of the class defined by statute to be intoxicating or where there is no such statutory definition 25. Connecticut.— State v. Cun- Durfee v. State, 53 Neb. 214, 73 N. ninjrham, 25 Conn. 195. W. 076. Georgia.— Cole v. State, 120 Ga. Vermont. -Lincoln v. Smith, 27 485, 48 S. E. 156. vt - 328 - Iowa.— State v. Wright, 98 Iowa 702, 68 N. W. 440. 26. State v. Cunningham, 25 Conn. 195; State v. Sheppard, 64 Kan. 451, 67 Pac. 870; Parsons v. State, 61 Kansas.— State v. Sheppard, 64 Neb 244 g5 N w 65 Kan. 451, 67 Pac. 870. s7 . Michigan.— People v. Barry, Massachusetts. — Commonwealth r. ^ Mich. 256 65 N. W. 98. Foster, 182 Mass. 276, 65 N. E. 391. 2S# gtate v ' MarchbankSj 61 S. C. Commonwealth v. Lufkin, 107 Mass ,» ^ g g jgy 553, 46 N. E. 109. 29. State v. Pratt, 34 Vt. 323. Minnesota. — State v. Lewis, 86 30. Smith v. McConnell, 90 Iowa Minn. 174, 90 N. W. 318. 197, 57 N. W. 707. Nebraska.— Parsons v. State, 61 31. Commonwealth v. Sullivan, Neb. 244, 85 N. W. 65, following 156 Mass. 487, 31 N. E. 647. § 674] E\ ID 717 to show that it was in fact intoxicating. Of course this does not apply where the liquor is one of whose intoxicating qualities the court will take judicial notice. 32 § 674. Whether liquor intoxicating — evidence as to. The fact that the liquor sold was intoxicating need not neces- sarily be shown by direct evidence but may be established by cir- cumstantial evidence. 33 In showing the intoxicating quality of the liquor in question evidence is admissible of the effect of some of the same liquor upon persons who have drank it. 34 And as tending to show the intoxicating quality of liquor the opinions of witnesses are in some cases admissible. 35 So a witness who has drank some of the liquor in question may testify as to its effect upon him and whether in his opinion it would produce intoxi- cation. 36 Again upon the question of whether a certain liquor found in the possession of the defendant is intoxicating it is 32. Kurz v. State, 79 Ind. 488; Deveny v. State, 47 Ind. 208; How- ser v. State, 18 Ind. 106. 33. Dant v. Slate, 83 Ind. GO. 34. Alabama. — Costello v. State, 130 Ala. 143, 30 So. 376. Georgia. — Thorpe v. State, 89 Ga. 748, 15 S. E. 647. Kansas. State v. Adams, 44 Kan. L35, 24 Pac. 71. Pennsylvania,. — Commonwealth v. Reyburg, 122 Pa. St. 299, 16 Atl. 351, 2 L. R. A. 415. South Carolina, — State v Robison, 61 S. C. 106, 39 S. E. 2)7. Texas. — Taylor v. State, 44 Tex. Cr. App. 437, 72 S W. 181; Pike v. State, 40 Tex. Cr. App. 613, S. W. 395. Where the article sold is called a "tonic" or "bitters" testimony of witnesses as to its intoxicating effect upon them after drinking it is ad- missible. Brantley v. State, 91 Ala. 47, 8 So. 816. 35. Alabama. — Carl v. State. 87 Ala. 17, 6 La. 118, 4 L. R. A. 380. Indiana. — West v. State, 32 Ind. App. 161, 69 X. E. 465. Kentucky. — Cockerell v. Common- wealth, 115 Ky. 296, 7:; S. W. 760. Missouri. — State v. Brosius, 39 Mo. 534. New York. — People v. Henschel, 12 N. Y. Supp. 46. Evidence as to quantity necessary to produce intoxication as compared with whisky may be stated by a wit- ness though in the form of an opinion. State v. Brosius, 39 Mo. 534. 3'•*• State v. Bennet, 3 Harr. information and it is error to admit (Del.) 505. evidence showing the maintenance of 40. State v. Wright, 68 N. H. a nuisance at another place. State 351, 44 Atl. 519. v. O'Neal (N. D. S. C. 1909), 124 41. Henry v. State, 04 Ark. 496, N. W. 68. 43 S. W. 498; Long v. State, 50 Ind. EVIDENCE. 719 § 677] milted within the limits of a municipal subdivision the evidence should show thai the offense was committed at the place alleged. 44 § 677. Evidence as to time. The evidence should show that the offense was committed prior to the finding of the indictment and within the period prescribed by the statute of limitations so that it is not barred thereby. 45 And where after the adoption of local option in a county a prose- cation is commenced under the general law in force prior thereto it is held necessary to show that the offense charged was done while the general law was in force. 46 But where the exact day is not essential to a description of the offense it is not essential to prove that a sale was made on the day charged, provided it is shown not to have been barred by the statute of limitations. 47 So it is said : " It is well settled that the time of committing an offense, 44. Mitchell r. State, 97 Ga. 213, 22 S. E. 386 ; Botto v. State, 26 Miss. 108; State v. Horn, 64 N. J. L. 14!), 44 Atl. 845; Moore v. State, 12 Ohio St. 387; Hood v. State, 35 Tex. Cr. App. 585, 34 S. W. 935. 45. Arkansas. — Stelle v. State, 77 Ark. 441, 92 S. W. 530; Dixon v. State, 67 Ark. 495, 55 S. W. 850. Georgia. — Bragg v. State, 126 Ga. 442. 55 S. E. 232; Patton v. State, so Ga. Tit, 6 S. E. 273. In 'liana. — Buckner v. State, 56 Ind. 207. Kansas. — State v. Reick, 43 Kan. 279, 23 Pac. 577. Missouri. — State v. Madeira, 125 Mo. App. SOS, 102 S. W. 1046; State v. Kolb, -»s Mo. App. 2C.H. Texas. — Vaughan v. State (Tex. Cr. 1906), it:? S. \Y. 741: Billings v. State. 41 Tex. Cr. App. 253, 53 S. W. S54. 40. Patton v. State, 80 Ga. 714, 6 S. E. 273. 47. Arkansas. — Fitzpatrick v. State, 37 Ark. 373. Georgia.— Pitts v. State, 124 Ga. 79, 52 S. E. 147; Watts v. State, 120 Ga. 496, 48 S. E. 142. Indiana. — Fowler v. State, 85 Ind. 538. Louisiana. — State v. Stover, 111 La. 92, 35 So. 405. Michigan. — People v. Dieterich, 142 Mich. 527, 105 X. W. 1112. Missouri. — State v. Small, 31 Mo. 197; State v. Lantz, 90 Mo. App. 15 ; State v. Carnahan, 63 Mo. App. 244. New )'<>rk. — People v. Krank, 46 Hun 632. Snulh Carolina. — State v. Green, 61 S. C. 12. 3!t S. E. IS.',. Texas. — Monford v. state, 35 Tex. Cr. 237, 33 S. W. 351. Examine Barding v. Common- wealth, 105 Va. 858, 52 S. E 832. The exact hour of the tinie of the offense as fixed by the state is not a limitation upon the jury. Dive v. state (Tex. Cr.) , 55 S. W. 65. 720 EVIDENCE. [§ 6 78 except when time enters into the nature of the offense, or where the time is an essential element of the crime, may be laid and proved on any day previous to the finding of the bill of in- dictment, or the filing of the information or complaint, during the period within which under the statute it may be pros- ecuted, and that the proof is not limited to the day alleged." 42 And in the case of an alleged unlawful sale by a druggist the fact that the prosecution elects to rely on a sale made on a particular day does not exclude evidence of other sales to the same person at about the same time, such evidence tending to show that the liquor was not wanted for medical purposes and the lack of good i'aith on the part of the seller. 49 § 678. Sales on Sunday. "Where an accused is charged with an unlawful sale of liquors on a Sunday, the evidence should show that the sale was made on that day, though it is held that it is not essential that the proof should show that it was on the exact date alleged ; it being generally held sufficient to prove a sale on a Sunday prior to the finding of the indictment and on a date which is not barred by the statute of limitations. 50 And though an indictment in charging a viola- tion of the liquor law on a Sunday names a date which does not fall on Sunday, it has been held to be supported by proof of its commission on a Sunday. 51 An offer or exposure for sale of liquor 48. State v. Whipple, 57 VI. 637, But see People v. Lavin, 4 N. Y. . Per Walker. J. Cr. R. 547, holding that where it is 49. State v. Elliott, 45 Kans. 525, essential to constitute the offsnsethat 26 Pac. 55. it should be committed on a particu- £»<>. Marre v. State, 36 Ark. 222; lar day of the week that the proof Eoop v. People, 47 111. 327; Pan- should not only show that it oc- cake v. State, 81 Ind. 93: Webb City curred on such a day hut also that v. !':irker, 103 Mo. App. 205, 77 S. it occurred on the very day alleged. W. 119. 51 « State v. Bryson, 90 N. C. 747. Evidence of a saloon being See also People v. Ball, 42 Barb. open on Sunday is sufficient in (N. Y.) 324, wherein it was said: the absence of any explanatory " It was not an essential element in evidence. State v. Grant, 20 S. D. the offence charged that it should 164, 105 N. W. 97. have been committed on the 13th § 079] EVIDENCE. 721 on a Sunday is sufficiently shown by evidence of witnesses for the prosecution thai they went into the saloon, stood before a bar and ordered a drink from the defendanl who was behind flu- bar, whereupon he put down a bottle and glasses upon the bar, and that they then pound liquor out of the bottle into the glasses which they drank and that it was whisky. 02 § 679. Evidence as to keeping open on Sunday. Where the prosecution is for keeping open a licensed saloon on Sunday it is proper to show that the drinks were being dis- pensed at the bar in such place on that day. 53 And a witness may testify that he was in the saloon on the Sunday in question and purchased liquor there. 54 And a statute may forbid the keep- ing open of a saloon on Sunday, and that no person not employed shall be permitted to remain in or about such place and that if it appear that a person not so employed is permitted to remain in the saloon, such fact shall be prima facie evidence of the guill of the accused party. 55 In the case of an indictment for keep- ing open on Sunday proof of justification or excuse must come from the defendant. 56 And where a party is charged with keep- ing open a licensed saloon on Sunday and attempts to absolve himself from such charge by evidence that he had no knowledge of such fact, and had given his bartenders previous explicit instructions to keep such place closed on Sunday, it may be shown that on Sundays previous to the date of the offense charged his day of the month mentioned, or on 53. State v. Sodini, 84 Minn. 444, any other day of that month: The S7 X. \V. 1130. See State v. Ma- statement of the day of the month. deira, 125 Mo. App. 508, 102 S. W. in an indictment for committing an 1046; McKinney v. city of Nash- offense on Sunday, though the doing ville, Tenn. 7m. 33 S. W. 724. of the act on that day is the i_'i-t of •"» ». Berod v. State. 41 Tex. Cr. the offense, is not more material 597, 56 S. W. 59. than in other cases." Per Daniels, 56. Birmingham v. People, 40 j Colo. 362, '.n» Pac. 1121. 52. People v. Clark. 61 App. Div. 66. Warwick v. State, 48 Ark. 27, (N. Y.) 500, Tit X. V. Supp. 594. 2 S. W. 253. ~22 EVIDENCE. r§ gg(j saloon was open and running. 57 But where the statute permits the presence of waiters in the barroom for the purpose of obtain- ing and serving drinks in a dining room adjoining, and in a prosecution of a person it is alleged that persons were present in the barroom but it is claimed by the defendant that they were there for the purpose permitted by statute, the burden is on the people to prove beyond a reasonable doubt that such persons were not in the employ of the defendant and admitted to the barroom in the course of their employment. 58 In this connec- tion is is also decided that where, on the prosecution of a person for keeping his saloon open on Sunday, it is shown that persons were admitted to the saloon on that day, it is not material whether any sales of liquor were made or not. 50 § 680. Intent, knowledge or good faith on part of defendant. Where by statute" an act is made an offense under the liquor laws without regard to the intent with which it is done, evidence of an intent is not material. 60 And a witness should not be permitted to testify as to his intention, in going to a saloon, in regard to the purchase of beer and drinking it upon the premises knowing the defendant had no license to sell by the glass, for the purpose of evading the law as such evidence bears in no way upon the motives of the defendant or his conduct in the management of his place. 61 So evidence of the purpose with which persons visited a room where liquors were kept by defendant is irrele- vant to the inquiry whether or not such persons, while there, procured the liquors, with the knowledge and consent of the defendant for unlawful purposes. 62 But where intent is an 57. State v. Sodini, 84 Minn. 444, 132 Pa. So. 357, 19 Atl. 273; Pette- 87 X. W. 1130. way v. State, 3G Tex. Cr. 97, 35 S. 58. People v. Ryan, 85 App. Div. W. 646. (N. Y.) 524, 83 N. Y. Supp. 657. 61. Delaney v. State, 51 N. J. L. 5». People v. Bowkus, 109 Mich. 37, 16 Atl. 267. 360, 67 N. W. 319. 62. state v. Harris, 64 Iowa 287, 60. Commonwealth v. Halstine, 20 N. W. 439. § 680] EVIDENCE. 723 element of the offense as where an accused is charged with the offense of keeping liquors for unlawful sale, evidence of previous unlawful sales made by him is admissible as tending to show such intent. 03 So the unlawful intent with which liquors were kept may be presumed from the fact of their sale in violation of law. 64 So where the evidence showed that there was beer freshly drawn under the bar; that a bottle of whisky and a glass were upon the bar ; that barkeepers of the proprietor were present in their shirt sleeves and that there were several men also present it was held that, in the absence of evidence explaining such facts they would warrant the inference that the defendant's barkeepers were intending to sell intoxicating liquors on the Sun- day in question and that they were acting by the authority of the defendant. 65 And as tending to show knowledge on the part of the owner of a building where he is charged with knowingly having permitted a liquor nuisance to be maintained there, evi- dence that it was generally regarded in the community as being used for such a purpose is admissible. 66 Evidence is also admis- sible of a notice sent by the prosecuting officer to the defendant informing him of the intoxicating character of the liquor which he was selling. 67 The state may also, for the purpose of showing the knowledge and intent of the defendant, show as to the character of the liquors and the purpose of their sale circumstances in connection with a sale such as that the defendant refused to permit the purchaser to drink the same upon the premises. 68 So 63. Connecticut.— State v. Hart- 6 4. Hornberger v. State, 47 Neb. wick. 40 Conn. 101; State v. Ray- 40, 06 X. W, 23. mond 21 ('nun. 2ii4. 65# Comomnwealth v. McNeese, 7o,ca.— State v. Sartori, 55 Iowa 150 Mass. 231, 30 N. E. 1021. 340 7 X. W. 004. e6. State v. Brooks, 74 Kan. 175. Massachusetts. — Commonwealth v. sr> Pac. 1013. Gould. 158 Mass. 199, 33 X. E. 656. «7. Henderson v. State, 49 Tex Michigan.— People v. Moore, 155 Cr. 269, 91 S. W. 569. Mich. 107. IIS X. W. 742. ««• State v. Costa, 78 Vt. 198, 62 Nebraska. — Hans v. State, 50 Neb. Atl. 38. 150, 69 X. W. 838. 724 EVIDENCE. [§ eg! evidence of a conversation between a traveling salesman, desiring to sell a certain so-called tonic, and a druggist who refused to buy the tonic in question during which a changing of the name of the labels was proposed by the former, which was done is ad- missible as tending to show knowledge on the part of the druggist and an intent to evade the law. 69 In a prosecution for selling in- toxicating liquor without a license the defendant cannot show in defense that although it was intoxicating, it was sold in good faith for use as a medicine. " The seller must acquaint himself with the contents of the liquor preparation he is selling; and if it is one of the liquors under the ban of the law, or contains the elements necessary to constitute an intoxicating liquor in such form as it may be used as a beverage ' it is unlawful to sell the same, even though the seller do so, thinking in good faith that it is to be used as a medicine." 70 § 681. As to keeping place for unlawful selling — liquor nuisance. Upon the prosecution of a person for keeping a building used for the illegal sale of intoxicating liquors an indictment is not supported by evidence that the defendant was owner of the prem- ises and made a lease of them to another, knowing that they were to be used for such illegal sales and were in fact so used. 71 But a conviction for maintaining a liquor nuisance is sustained by evidence of statements by the defendants to others that be in- tended to sell liquor at the place in question, that liquor was sub- sequently bought there, that the odor of liquor came from such 69. Murry v. State, 40 Tex. Cr. and keeping of intoxicating liquors 128, 79 S. W. 508. where the only evidence is that the TO. Sidle v. State, 77 Ark. 441, occupant of the house and the serv- 92 S. W. 530. Per McCulloch. J. ants of the defendants sold liquor But see §§ herein as to good faith in there it is a question for the jury to sales of compounds. decide under proper instructions as 71. Commonwealth v. Churchill, to the effect of a sale in defendant's 136 Mass. 148. house by his servants. Common- Question for jury*— Upon the wealth v. Dunbar, 9 Gray (Mass.) prosecution of a person for keeping 298. a building used for the illegal sale § 682] EVIDENCE. 725 place and thai empty vessels which had contained liquor were found there. 72 § 682. As to liquors kept for unlawful sale. Where a person is charged with keeping spirituous and malt liquors for unlawful sale, there should be evidence of the spirit or malt element in the liquors, and also, evidence that they were kept for sale. 73 But the fact that liquors were kept for unlawful sale may be proved without showing a sale or an offer or an at- tempt to sell. 74 Thus the finding of intoxicating liquors upon the premises may in connection with other circumstances be presump- tive evidence of a keeping for unlawful sale. 75 And it is proper in some cases to instruct the jury in such a case that the finding of intoxicating liquors upon the premises is prima facie evidence that they were kept there for unlawful sale. 76 So it has been held proper to exhibit to the jury articles taken from the place charged to be a nuisance during the time it is alleged to have been such and at the time the defendants were arrested even though the contents of a part of the bottles and other vessels are not shown to be intoxi- cating liquor. 77 And in such a case evidence is also admissible of 72. Slate v. Cleary, 97 Iowa 413, New Hampshire.— State v. Gor- 6G N. W. 724. man, 58 N. II. 77. T3. Hollingsworth v. City of At- Rhode Island.— State v. Hoxsie, lanta, 79 Ga. 503, 5 S. E. 37. 15 R. I. 1, 22 Atl. 1059, 2 Am. St. 7i. State v. McGlynn, 34 N. H. Rep. 838. 422. See State v. Sniter, 78 Vt. 391, Vermont.— Lincoln v. Smith. 27 63 Atl. 1S2. Vt. 328. 7.-.. Iowa. — State v. Arie, 95 Iowa 76. State v. Giroux, 75 Kan. 095, 375, 64 X. W. 268; State v. Shank, 90 Pac. 249. 74 Iowa 649, 38 X. W. 523. 77. State v. Giroux, 75 Kan. 695, Massachusetts. — Commonwealth v. 90 Pac. 249. Martin, 162 Mass. 402, 38 X. E. 708; Articles found on another's Commonwealth v. fanny. 158 Mass. premises but in the same building 210, 33 X. E. 340; Commonwealth v. and under such eireumstanees Eenry, 109 Mass, 366. tended to show that they were for Nebraska.— O'Neill v. State, 76 the use of the defendant have Neb. 44. 107 N. W. 119; Steinkuh- held admissible. Stat,, v. Sniter, 78 ler v. State. 77 Neb. 331, 109 N. W. Vt. 391, 63 Atl. J82. 395 The finding of empty bottles 726 EVIDENCE. [§ 682 the keeping of other liquors than those charged. 78 Again evidence of the amount and kind of liquors kept is also admissible for the consideration of the jury in determining the purpose for which the defendant kept liquors. 79 And evidence of the conduct of the defendant at the time of the search of the premises by the officers such as attempts to deceive them or to conceal or destroy the liquors is also admissible as tending to show the purpose of the keeping. 80 So in the case of an indictment for unlawfully keeping intoxicat- ing liquors for sale evidence of attempted concealment of glasses bottles and vessels in which liquor was or had been contained is competent. 81 Again evidence has been held admissible of persons being seen to leave the premises at different times in an intoxicated condition. 82 But evidence that some weeks prior to the finding of the indictment for keeping a liquor nuisance, liquors were seized upon the same premises under a search warrant, and after trial restored is not admissible where no attempt is made to show that the violations of law charged in the indictment were the same as those charged in the proceedings under which the liquors were seized. 83 And the fact that some liquors were kept in storage by the defendant has been held to be immaterial upon the question whether there had been an unlawful sale by him. 84 And on the trial of a person for keeping liquors for unlawful sale he may which contained a so-called Mass. 6, 35 N. E. 83; Common- medicine may be shown for pur- wealth v. McKenna, 158 Mass. 207, pose of proving the drinking of such 33 N. E. 38!). medicine as a beverage. Murry v. Evidence of the presence of People, 46 Tex. Cr. 128, 79 S. W. intoxicated persons upon the premises at the time a search thereof 78. Weinandt v. State, 80 Neb. was made and that they were quar- 161, 113 N. W. 1040. reling over a bottle has been held 79. State v. Shank, 74 Iowa 649, admissible though it was shown that 38 N. W. 523. the bottle did not contain intoxicat- 80. Commonwealth v. Lynch. 104 ing liquor. State v. Krinski, 78 Vt. Mass. 541, 42 N. E. 95; Common- 162, 02 All. 37. wealth v. Shaw, 110 Mass. 8. 83. Slate v. Zimmerman, 7S Iowa 81. Commonwealth v. Brothers, 014, 43 N. W. 458. 158 Mass. 200, 33 N. E. 380. 84. Donald v. State (Miss.) 82. Commonwealth v. Shea, 160 41 So. 4. § 083] EVIDENCE. 727 show that the keeping was by him as a pharmacist in compound- ing medicines but he will not be permitted to introduce in evidence hand bills, as samples of those distributed by him in advertising certain medicines in the absence of evidence to show that liquor was used in compounding these medicines. 85 § 683. License from United States. As we have stated elsewhere a license from the United States affords the holder no protection in case of a violation of the state laws and therefore evidence of such fact would not be admissible in defense of a prosecution for a violation of such laws. 86 On the other hand, however, evidence is in many cases admissible in behalf of the state of the possession by the defendant of a license from the United States as tending to show the guilt of the accused in prosecutions such as keeping liquors for the purpose of un- lawful sale and other similar offenses. 87 And by statute in some 85. State v. Hitchcock, 68 N. H. 244, 44 Atl. 296. 86. See § 84 herein. 87. Kentucky. — Throckmorton v. Commonwealth, 20 Ky. Law Rep. 1508, 49 3. W. 474. Maryland. — Guy v. State, 90 Md. 692, 54 Atl. 879. Massachusetts. — •Commonwealth v. Brown, 124 Mass. 318. Mississippi. — Burnett v. State, 72 Miss. 994. 18 So. 432. Missouri. — State v. Munch, 57 Mo. App. 207. Nebraska. — Fruide v. State, 66 Neb. 244, 92 X. W. 320. North Carolina. — State v. Dowdy, 145 X C. 432, 58 S. E. 1002. Rhode Island. — State v. Mellor, 13 R. I. 66. Texas. — Coleman v. State, 53 Tex. Cr. 578, 111 S. W. 1011; Clark v. State, 40 Tox. Cr. 127, 40 S. W. 85. Vermont. — State v. Intoxicating Liquors, 44 Vt. 258. A copy of a United States revenue collector's records sworn to by him as a correct and true copy is admissible for this purpose. State v. Xippert, 74 Kan. 371, 80 Pac. 478. The state may on cross-ex- amination of the defendant prove that the defendant held a United States revenue license to sell whisky. Clark v. State, 40 Tex. Cr. App. 127, 49 S. W. 85. A return made by the de- fendant to the revenue col- lector declaring an intention to carry on tho business of a retail liq- uor dealer, with the payment of the tax thereon is admissible in evidence for the purpose of showing an in- tention to sell. State v. Teahon, 50 I i. '.12. Evidence is not admissible of the obtaining of such a license subse- quent to the date of the offense charged. Lane v. State, 49 Tex. Cr. 335, 92 S. \Y. 839. 728 EVIDENCE. [§ 684 states the possession of a license from the United States is made prima facie evidence. 88 Such a statute is held to be declaratory merely of the common law and valid. 89 Evidence of this nature being prima facie merely, 90 a defendant is entitled to offer evi- dence in explanation of such fact and to have the jury consider it in connection therewith. 91 And in this connection it has been held proper to instruct the jury that the possession of such license was prima facie evidence that the defendant was engaged in the liquor business but that he could not be convicted on such evidence alone. 92 As tending to show the purpose for which the defendant took out the license evidence is admissible of what passed between him and the assessor of internal revenue at the time when he applied for the license. 93 But to render evidence of such a license competent it is essential that it should cover the period within which the offense is alleged to have been com- mitted. 94 And the possession of a government license though made by statute prima facie evidence of a blind tiger has been held not to be evidence that the owner or occupant of the house was selling liquor. 95 § 684. As to sales to prohibited classes. Where law prohibits the sale of liquor to a person belonging to 88. Arkansas.— Winton v. State, 262; Williamson v. State, 41 Tex. 77 Ark. 143, 91 S. W. 7. Cr. 461, 55 S. W. 568. Kentucky.— Hestand v. State, 28 »l. State v. Morin, 102 Me. 290, Ky. Law Rep. 1315, 92 S. W. 12. 66 Atl. 650; Fruide v. State, 66 Neb. Maine.— State v. O'Connell, 82 Me. 244, 92 N. W. 320. 30, 19 Atl. 80. » 2 - Guy v. State, 96 Md. 692, 54 Michigan. — People v. Remus, 135 Atl. 879. Mich. 629, 98 N. W. 397, 100 N. W. It is error to instruct the 403. jury that evidence of this fact is North Dakota.— State v. Momberg, conclusive. Stati v. Momberg, 14 14 N. D. 291, 103 N. W. 506. N. D. 291, 103 N. W. 506. 89. Commonwealth v. Uhrig, 146 »3. Commonwealth v. Austin, 97 Mass. 132, 15 N. E. 156. Mass. 595. !><>. State v. Intoxicating Liquors, »•*• Snyder v. State, 78 Miss. 366, 80 Me. 57, 12 Atl. 794; Common- 29 So. 78. wealth v. Keenan, 11 Allen (Mass.) »5. Liles v. State, 43 Ark. 95. § <;85] EVIDENCE. 729 a certain designated claes of persons and the accused is charged with making a sale in violation thereof the evidence should be such as to bring the offense within the terms of the statute. So where the prosecution is for a sale of liquor to a person in the habit of becoming intoxicated the evidence should show both the fact of sale and that the person to whom it was sold was in the habit of becoming intoxicated. 96 But although where the offense alleged is a sale to an intoxicated person the state should show that such person was intoxicated at the time of the sale yet it is not compelled to show that he was intoxicated at the very moment thereof, it being sufficient to show intoxication a short time before that, from which intoxication at the time of sale may be inferred. 97 And where the state proves the sale, and that the purchaser was at the time in a state of intoxication, the case is prima facie made out without showing that the defendant knew the purchaser was intoxicated, as the law will presume that he did know it. 98 In the case of an alleged sale to a minor the evidence should show the making of a sale to one who was in fact a minor 99 § 685. Burden of proof — defenses. As to those matters upon which a defendant may rely as an excuse or justification for the doing of the act alleged and which relieves it of its alleged criminal character, thus becoming mat- ters of defense the burden of proof rests upon him to establish then. This rule applies to an exception in the statute which is in »G. Miller v. State, 107 Ind. 152, Arkansas. — Pounders v. State, 37 7 N. E. 898. Ark. 339; Edgar v. State, 37 Ark. 97. Kamman v. People, 124 111. 219. 481, 1G N E. 6G1. Colorado. — Lfiggett v. People 26 98. Brow v. State, 103 Ind. 133, 2 Colo. 364, 58 Pac. lit. N. E. 290. Georgia. — Gaakins v. State, 127 99. Ehrich v. White. 74 111. 1*1 : Ga. 51, 55 S. E. 1045. Dolke v. State, 99 Ind. 229: Ehlert Illinois. — Gunnarssohn v. City of v. State, 93 Ind. 70. Sterling, 92 III. 569. 1. Alabama.— Atkins v. State. 00 Iowa.— State v. O'Malley, 132 A la. 45. Iowa 090. 109 .V \Y. 491; Shear v. 730 EVIDENCE. [§ G85 a substantive clause subsequent to the enacting clause and not so incorporated with the enacting clause that the one cannot be read without the other. 2 So where a sale to a minor is permissible if made with the consent of the parent or guardian, if the defendant claim in defense that the sale was of such a character, the burden is upon him to establish such fact. 3 And though a defendant may show that he acted in good faith believing the purchaser to be an adult and used reasonable precautions in making a sale to an alleged minor the burden of establishing such defense is upon him. 4 And where a city in pursuance of a power in its charter adopts an ordinance prohibiting the sale of any intoxicating liq- uors within its limits, if sales of such liquors are made in the city for a lawful purpose, the burden is upon the seller to prove such fact. 5 And in the case of a pharmacist where a sale of in- toxicating liquors by him is proved the burden is held to rest upon him to prove that the sale was a lawful one. 6 And that liquor was sold upon the prescription of a physician is a matter of de- Green, 73 Iowa 688, 50 N. W. 642; 2. Devine v. Commonwealth, 107 State v. Cloughly, 73 Iowa 626, 35 Va. 860, 60 S. E. 37. N. W. 652; State v. Curley, 33 Iowa 3. Alabama. — Freiberg v. State, 359. 94 Ala. 91, 10 So. 703; Farrall v. Kansas. — State v. Crow, 53 Kan. State, 32 Ala. 557. 662, 37 Pac. 170. Arkansas. — Pounders v. State, 37 Kentucky. — Orme v. Common- Ark. 399; Edgar v. State, 37 Ark. wealth, 21 Ky. Law Pep. 1412, 55 219; Williams v. State, 36 Ark. 430. S. W. 195. Georgia. — Graham v. State, 121 Massachusetts. — Commonwealth v. Ga. 590, 49 S. E. 678 ; Dixon v. Regan, 182 Mass, 22, 64 N. E. 407. State, 89 Ga. 785, 15 S. E. 684; Nebraska. — Hornberger v. State, 47 Ridling v. State, 59 Ga. 601. Neb. 40, 66 N. W. 23. Illinois. — Monroe v. People, 113 New York.— People v. Maxwell, 83 111. 670. Hun 157, 31 N. Y. Supp. 564. West Virginia.— State v. Cain, 9 Rhode Island.— State v. Collins, 28 W. Va. 559. R. I. 439, 67 Atl. 796. 4. Fehn v. State, 3 Ind. App. 568, Texas.— Neal v. State, 51 Tex. Cr. 29 N. E. 1137. 513, 102 S. W. 1139. 5. Gunnarssohn v. City of Ster- Virginia. — Devine v. Common- ling, 92 111. 569. wealth, 107 Va. 860. 60 S. E. 37. <>■ State v. Cloughly, 73 Iowa 626, West Virginia.— State v. Cain, 9 35 N. W. 652. W. Va. 55:j. § 080] EVIDENCE. 731 fense and the burden of showing it is upon the defendant. 7 Upon the prosecution of a druggist for selling intoxicating liquors with- out a license, a prescription for sherry wine found in his posses- sion along with others, seemingly filled in the regular cour- business is admissible to show a sale on the date marked thereon. 7 " § 686. Burden of proof — license or authority to sell "Where the possession by the defendant of a license or authoriza- tion would be a defense to the act alleged to be criminal upon his part, the burden of proof rests upon him to show that he possesses the same. 8 And where under the statute in force a 7. State v. Emery, 98 N. C. 768, 3 S. E. 810. See also Atkins v. State, 60 Ala. 45. 7a. Commonwealth v. Duprey, 180 Mass. 523, 62 N. E. 720. «• United States. — United States v. Nelson, 29 Fed. 202. Alabama. — Lambie v. State, 151 Ala. 86, 44 So. 51. Arkansas. — Flower v. State, 39 Ark. 209. Colorado. — Liggett v. People, 26 Colo. 364, 58 Pac. 144. Georgia. — Sharp v. State, 17 Ga. 290. Illinois. — Noecker v. People, 91 111. 468. Indiana. — Taylor v. State, 49 Ind. 555. Iowa. — State v. Kriechbaum, 81 Iowa 633, 47 N. W. 872. Kansas. — State v. Crow, 53 Kan. 662, 37 Pac. 170. Kentucky. — Orme v. Common- wealth, 21 Ky. Law Pop. 1412, 55 S. W. 195. Maine. — State v. Woodward, 34 Me. 293. Massachusetts. — Commonwealth v. Regan. 182 Mass. 22, 64 N. E. 407; Commonwealth v. Curran, ll'.t M;iss. 200; Commonwealth v. Ryan, 9 Gray 137. Minnesota. — State v. Ahern, 54 Minn. 195, 55 N. W. 959. Mississippi. — Pond v. State, 47 Miss. 39; Thomas v. State, 37 Miss. 353. Missouri. — State v. Edwards, 60 Mo. 490; State v. Stephens, 70 Mo. App. 554. Nebraska. — Hornberger v. State, 47 Neb. 40, 66 N. W. 23. New Hampshire. — State v. Mc- Glynn, 34 N. H. 422 ; State v. Foster, 23 N. H. 348, 55 Am. Dec. 191. New Jersey. — Jackson v. Camden, 48 N. J. L. 89, 2 Atl. 668. New York. — Jefferson v. People, 101 N. Y. 19, 3 N. E. 797; People v. Maxwell, 83 Hun. 157, 31 N. Y. Supp. 564. North Carolina. — State v. Sorell, 98 N. C. 73S. 4 S. E. 630 J State v. Emery, 98 X. C. 668, 3 S. K. 636. Oklahoma. — Reed v. Territory. 1 Okla. Cr. 481, 98 Pac. 583. I'i nnsylvania. — Commonwealth v. Wenzel, 24 Pa. Super. Ct. 407. Rhode Island. — state v. Higgins, 13 R. I. 330, l". Am. lie; . 26n. Texas. — Lucio v. State, 35 Tex. (r. 320, 38 S. \V. Vermont. — State v. Xulty, 57 Yt. 543. 732 EVIDENCE. [§ 687 person may either by an exception therein or by an express permit or license be authorized to sell liquors for medical, mechanical or some other specified purposes, if he claims that the sale in ques- tion was for a purpose for which he is authorized to sell, the bur- den of proof rests upon him to establish that fact. 9 § 687. As to violation of instructions by agent. A defendant may in some cases be permitted to show that the sale for which he is being prosecuted was made by an agent of his in violation of express instructions given by him to such agent. 10 So where it appeared in a prosecution for selling liquor to a common drunkard that the sale complained of was made by the clerks of the defendant and he offered evidence to show that he had given such clerks specific directions to sell no liquors to common drunkards it was held that such evidence was admissible. 11 To entitle evidence of this character, however, to any particular weight it should also appear that the instructions were given by the principal in good faith. 12 And where a defendant attempts to absolve himself from liability for sales made by his servants ~\Yashington. — State v. Shelton, 16 Commonwealth v. Coughlin, 182 Wash. 590, 48 Pac. 258, 49 Pac. Mass. 558, GO N. E. 207; Common- 1064. wealth v. Stevens, 155 Mass. 291, 29 9- Florida.— Baeumel v. State, 26 N. E. 508; State v. McCance, 110 Fla. 71, 7 So. 371. Mo. 398, 19 S. W. 648. Georgia. — Hines v. State, 93 Ga. H« Barnes v. State, 19 Conn. 398. 187, 18 S. E. 558, followed in Two judges dissenting The court said Mitchell v. State, 97 Ga. 213, 22 S. in this case: "We are aware, as E. 386. already intimated, the master is Illinois. — Noecker v. People, 91 sometimes made responsible civilly, 111. 468 ; Harbaugh v. City of Mon- for the servant's misconduct. * * * mouth, 74 111. 367. But the master is never liable crim- lowa. — State v. Grisenhause, 20 inally for acts of his servant done Iowa 227. without his consent and against his New Jersey. — State v. Terry, 73 express orders." Per Ellsworth, J. N. J. L. 554, 04 Atl. 113; Plainfield 12. It is a question for the jury v. Watson, 57 N. J. L. 525, 31 Atl. upon a consideration of all the evi- 1040. dence to determine whether the in- West Virginia. — Miles v. State, 5 structions were given in good faith. W. Va. 524. Commonwealth v. Coughlin, 182 1<>. Barnes v. State, 19 Conn. 398; Mass. 558, 66 N. E. 207. § 688] EVIDENCE. 733 on the ground that they violated his instructions to them, evid of previous offenses of the same character is admissible. 13 And evidence of previous general instructions is not material where it is shown that the particular sale charged was made with the de- fendant's knowledge and approval." § 688. Sale by an agent — evidence showing may be sufficient. Evidence of a sale by an agent or employee of the defendant i- in many cases regarded as sufficient proof of a charge of unlawful selling by the defendant. 15 This statement, however, is subject to the qualification that it should also appear that there was a consent to, knowledge of, or acquiescence in the sale either expr< - or implied. 16 And it should also appear that the one by whom the sale was made was in fact an agent or employee of the defend- ant though such relation may be inferred from evidence of consent to a knowledge of sales by such person. 17 But the fact of the em- 13. Stale v. Sodini, S4 Minn. 4 11, 87 N. W. 1130, so holding in a prose- cution for keeping open on Sunday. 14. State v. Mueller, 38 Minn. 497, 38 N. W. 691. 15. Connecticut. — State v. Cur- tiss, (i'.t Conn. 86, 36 All. 1014. Florida.— Hiers v. State, 52 Fla. 25, 41 So. 881. Indiana. — Moliban v. State, 30 [nd. 266. Iowa.— State v. O'Malley, 132 Iowa 696, 109 X. W. 491. Massachusetts. — ( lommonwealth v. L yette, 1 is Mass. 130, 19 N. E. 26. Michigan. — People v. Possing, 137 Mich. 353, 100 N. W. 396. Ohio. — Parker v. State, 4 Ohio So. 563. Texas.— Clark v. Stair, 40 Tex. Cr. 127, 49 S. W. 85. us. Alabama. — Daniel v. Stale 149 Ala. 44. 43 So. 22. Arkansas. — Beane v. Slate, 72 Ark. 368, 80 S. W. 573. Indiana. — Wreidt v. State, 48 Ind. 579. Iotca.— Goods v. State, 3 G. Greene 566. Massachusetts. — Commonwealth v. Hayes, 145 Mass. 289, 11 X. E. 151 ; Commonwealth v. Brianl. 1 12 M 463, 8 X. E. 338. Ohio.— Parker v. State, 4 Ohio So. 5G3. The owner of a dramshop cannol be convicted of unlawfully keeping it open on Sunday without proof thai it was kept open with his knowledge and consent. Beane v. State. ~i Ark. 368, 80 S. W. 57o. it. Alabama. — Perkins v. State, 92 Ala. 66, 9 So. 536. Indiana. — Anderson v. State, 39 Ind. 553. Massachusetts. — Commonwealth v. Keenan, 152 Mass. 9, 25 \. E. 32. Missouri. — State v. Quinn, 4n Mo. App. 573. 734 EVIDENCE. [§ 688 ploymcnt of a person may be inferred from the relative situation of the parties, and the nature of the employment without proof of any express employment either verbal or written. 18 And where the evidence showed that the sale of liquor was made by the wife of the defendant, it was competent to show the frequency of such sales by- the wife as this afforded an inference that the defendant kept such liquor at his store, and that in making such sales the wife acted as his agent. 19 New Hampshire. — State v. Foster, 55 Am. Dee. 191. 23 N. H. 348, 55 Am. Dee. 191. 19 - Guarreno v. State, 148 Ala. 18. State v. Foster, 23 N. H. 348, 637, 42 So. 833. INDEX. REFERENCES ARE TO SECTIONS. A. ABANDONMENT. section of premises, exemption from consents 257 ABATEMENT. See Injunction and Abatement. ABUSIVE LANGUAGE. as an element of wife's damages 482 ACCESS. of officials to premises, ordinance as to 171 ACCIDENT. suspending occupation of premises 312 ACCOUNTS. time of settling of, by town agent n 98 ACTION. on bonds, generally 363 ACTUAL DAMAGES. must be shown to recover exemplary n 490 ADMINISTRATOR. right of, under license to deceased 292 ADOPTION. of local option. See Local Option Laws. ADULTERATION. act to prevent, where inspector not appointed n 129 of liquor, stai ntts providing for inspection of 130 of liquor, statutes against 131 no defense to action for liquors sold n 131 statute designating cereals to be used in malt liquor 132 735 736 INDEX. ADVERTISING. section stat utes as to AFFIDAVIT. required of applicant, statements in 246, n 247 incompetent to prove petitioners not freeholders n 249 accompanying petition for revocation n 317 verifying- complaint in proceeding to revoke n 317 AGE. entry in family Bible as showing n 352 AGENT. See City agent, State agent, Town agent. of owner may sign consent 255 violation of law by, as ground for refusing license 284, 285 sale by unlicensed member of firm not sale by n 295 of owner of liquor, no defense that was that of, forfeiture. . . 548 of railroad, testimony by, as to delivery of liquors 671 of city or town to purchase and sell 96, 97, 98, 99 licensee may sell by 291 of license, acts by, bond 356 violation of instructions by, civil damages 436, 437 sales by, civil damages 436, 437, 438 owner bound by knowledge of, civil damages 442 evidence as to violation of instructions by 687 evidence showing sale by, may be sufficient 688 AGRICULTURAL FAIR. excluding traffic within certain distance of 103 ALCOHOL. where declared by statute to be intoxicating 9 judicial notice that it is intoxicating 17 intoxicating element in intoxicatng liquor 17 defined 17 not in common parlance a spirituous liquor 17 not ardent or vinous 17 as an ingredient of medicine 37-42 proportion of, in medicines, as factor 38 fruit preserved in n 83 per cent of in liquor, evidence showing 674 ALCOHOLIC LIQUOR. brandy is 26 peach brandy is n 26 ALDERMAN. not police official within license statute 240 board of, suspension of rules by, in granting license 277 INDEX. 737 ALE. sec i row defined 18 a malt liquor, judicial notice IB included in term " strong or spirituous liquors " ] - not a spirit uous liquor 18 "ALL DAMAGES." as used in bond construed n 1 .;:, ALLEGATIONS. in petition for license 242 in petition for revocation of license 317 answer in proceedings to revoke 318 in action on bond :;r,.-, of execution in action on bond, effect of n 365 in petition for local option election 381 See Indictment and information. ALTERCATION. intoxicated person killed or injured while engaged in, civil damages 432 AMENDMENT. to statute, substituting "intoxicating" for "spirituous".... 70 to statutes, construction of 70 to petition for license 247 to remonstrance 264 of complaint, civil damages n 457 of petition for abatement 625 AMOUNT. of business as basis for taxation 17»i of fee, power of legislature as to 195 of license fee, powers of city as to 213, 214, 215, 216, 217 of fee, discretion of municipal corporation as to 215 of bond 348 ANALYSIS. showing per cent of alcohol in liquor — evidence 674 ANNEXATION. of territory to city — ordinances 158 ANSWER. in proceedings to revoke 318 in action for penalty 5GS APARTMENT. given to person to qualify him as signer of petition n 250 738 INDEX. APPEAL. SECTION remonstrances 265 from action of licensing- board having- discretionary power. . . . 274 none from order overruling remonstrance n 275 from license board, no formal pleadings n 276 from license board, transcript of evidence on n 276 from license board, bond on n 276 from order for transfer of license n 300 refusal to revoke, contention that as to order of reference. . . . 323 statute as to, search and seizure 502 APPEARANCE. waiver of defects in notice of seizure by 537 not waiver of jurisdictional defects, search and seizure 537 effect of, injunction, decree, contempt 635 APPLE BRANDY. intoxicating, judicial notice 26 APPLICANT. witnesses as to fitness of n 240 for license, as to character of 241 statements in petition for license as to 245 APPLICATION for license. See Petition. to town agent for liquor n 98 in writing- for liquor may be required 128 for hotel license, to be signed by freeholders 234 for removal permits 239 for license must possess qualifications 240 showing applicant not a proper person 241 for license, necessity of notice of 251 for license, necessity of publication of notice of 252 for license, sufficiency of notice of publication of 253 for license, mandamus to enforce action on 273 false statements in revocation 311 for license, statements in, strictly construed against applicant.. 311 for liquor, as evidence 669 APPROVAL. of bond 342 of bond, power of board as to 343 "ARDENT SPIRITS." defined 11 alcohol, not 17 ARREST. warrant of, and search warrant in one instrument 520 of person having liquors in possession, search and seizure.... 533 without warrant, search and seizure 534 INDEX. 7:;!» ARTICLES. sector found on promises as evidence of keeping for unlawful sale... 682 ASSAULT. y wife 483 by intoxicated person, recovery for 4'.i7 ASSESSMENT. of taxes. See Taxes. ASSIGNEE of liquor tax certificate as party to proceedings to revoke.... 319 of certificate may be allowed to intervene, proceedings to revoke 320 of liquor tax certificate, violations by assignor n 335 of liquor tax certificate, right to rebate, New York 336 in bankruptcy, injunction against 620 ASSIGNMENT. of license, can make none 298 of liquor tax certificate in New York 299 of license in Pennsylvania 300 ATTACHMENT. of license 301 as mode of recovering penalty 562 for contempt of court injunction 630 ATTORNEY. persons may remonstrate through 262 error by in signing name to remonstrance n 262 appearance by, waiver of proper notice of proceedings to revoke 322 board of excise cannot delegate power to sue for penalty to.. 5G0 B. BAILEE. liquor in hands of, search and seizure 506 BANKRUPTCY. injunction against assignee in 620 BAR. in place as evidence 671 740 INDEX. BAR FIXTURES. section rights of dealer as to n 192 right to seize, search and seizure 516 BALL GROUND. license to sell on 293 BALLOT BOXES. local option election 401 BALLOTS. local option election 401, 402 BARKEEPER. licensee may sell by 291 BARROOM. denned 15n BARTENDER. sales by, civil damages 436, 437, 438 BAY RUM, not within statute 37 BEER. where declared by statute to be spirituous and intoxicating. . 10 a malt liquor 19 fermented liquor, judicial notice 19 defined 19 whether intoxicating, judicial notice 20, 21, 22, 23 statutes as to inspection of 130 internal revenue stamps on kegs as evidence 675 BEER CELLAR. ordinance as to women in 162 BEER FAUCET. seizure of, search and seizure 516 BEER GARDEN. as a nuisance 618 BELL PUNCn. to keep count of drinks, statute n 176 BEVERAGE. compounds sold 1o be used as 39 liquor to be drank as, allegation as to, indictment 644 INDEX. 741 BILL. 1ION from wholesaler as evidence f '~ I of purchases as record n 98 BILLIARD ROOM. ordinance as to women in 162 BITTERS. when intoxicating n 38 purchased to be drank as beverage 39 whether intoxicating, evidence of effect of n 674 BLACKBERRY WINE. whether spirituous, question for jury 35 BLANKS. effect of in bond 346 BLOCK. in consent statute defined 254 BOARD OF ALDERMEN. suspension of rule by in granting license 277 BOARD OF EXCISE. cannot delegate to attorney power to sue for penalty 560 BOARD OF SUPERVISORS, power to impose license tax 203 BOARDS. See Licensing boards and officials. BOND. may be required n 8 " to keep " open house " n 109 when city no power to take 210 on appeal from action of license board n 276 where a bondman disqualified, licensee not discharged 339 where new bond required, sales before given 339 statute not pen. rally applicable to druggists 339 where required by law 339 extenl of liability on generally 34 ° construction of, generally 340 construed to effectuate intention of parties 340 liability to criminal prosecution not defense 340 sureties" liability limited by terms of 340 takes effect from date of filing n 340 effect of repeal of law 341 approval of 34 ~ approval of prerequisite to liability filing of mandamus to compel approval 343 where board has discretion as to approval of 343 742 INDEX. BOND— Continued. SECTION power of boards as to filing 343 power of boards as to approving 343 substantial compliance with statute as to conditions sufficient. 344 need not strictly conform to statute 344 recitals in one binding 345 recitals in 345 effect of misrecitals in 345 penalty left blank in 346 effect of blanks •• 346 as to sureties 347 amount of in nature of penalty 348 amount of 348 condition against violating statute, conviction 349, 350 necessity of a conviction for violation of law 350 conviction procured by testimony of special excise agents . . 350 condition as to gambling, nickel slot machine 351 conditions as to gambling 351 as to sales to minors 352 where statute prohibits allowing minor to enter and remain, evidence held insufficient 352 action of debt as well as scire facias may be brought on...n 353 as to sales on Sunday 353 in case of licenses to hotels 354 hotels, not to permit premises to become disorderly 354 as to payment of fines and costs 355 of pharmacist, act done by clerk 356 acts by agent of licensee 356 no liability where license void from inception 357 false statements in application 357 surety not liable after surrender of certificate 358 conditions not required by law 359 liability for judgment 360 only binding as to place named 361 release of liability, discharge of sureties, collateral agree- ment 36~ successive action may be brought 363 must pursue remedy on given by statute 363 act ion on not a criminal one 363 judgment in ad ion on 363 actions upon generally • • 363 not payable as statute provides n 364 parties to actions on 364 pleading 305 effect of allegation of execution n 365 evidence in actions on 366 burden of proof in action on 366 sureties can not set up their neglect as defense 367 right to question validity of 367 as to signing of n 307 IND] 743 BOND— Continued. SECTION want oi seal not defense n :;( ' 7 words " all damages " is construed n 435 when action may be one, civil damages '"'■ st at ntf as to, search and seizure action for breach of not for a penalty or forfeiture at com- mon law " liability of sureties on for penalty 566 BOOTHS ordinances as to 160 " BOROUGH." as used in New York law construed n 175 BOTTLES. in place as evidence °71 as evidence of keeping for unlawful sale 682 BOTTLING PLANT. dispensary board may maintain n 91 BONA FIDE. freeholders must be - 50 BOUNDARIES. of local option district changed 379 BRANDY. an alcoholic liquor 26 judicial notice whether intoxicating 26 defined and considered 26 effect of putting cherries and fruits in 27 BRANDY CHERRIES. effect of putt ing cherries in brandy 27 BRANDY FRUITS. effect of putting fruits in brandy 27 BRANDY PEACHES. d oi putting peaches in brandy 27 BREACH. of covenant not to sell liquors, enjoining breach of BREWER. See Licenses, Manufacturers, Taxes. subject to tax as wholesaler " 178 right to establish agency n 17S! BREWERY. rendered worthless by prohibition law ordinance imposing license fee on 211 744: INDEX. BEOTHELS. section prohibiting sales in 108 BUILDING. described in application not erected n 244 description of, indictment 655 BURDEN OF PROOF. to show that beer is not intoxicating 10 on one attacking validity of ordinance 142 as to requisite number of signers of petition n 249 authority of signers of remonstrance 262 remonstrances 266 defense non-compliance with law n 340 an hotel keeper to show sale by him was within exception. . . . 354 in action on bond 366 signers local option election 384 notices of local option election 393 sales to prohibited classes, civil damages 447 civil damage actions 458, 459 in actions for penalties 570 offense by dramshop keeper 668 offense by druggist 668 rule generally as to prosecution 668 intoxicating character of liquor 673 place of offense 676 as to time of offense 677 sales on Sunday 678 keeping open on Sunday 679 as to sales to prohibited classes 684 as to sales to minor 684 as to defenses generally . . . 685 license or authority to sell 686 BUSINESS. diminished in value by ordinance 157 amount of as basis for taxation 176 character of as basis for taxation 178 c. CALENDAR YEAR. in license statute construed 297 CALIFORNIA BRANDY. spirituous and intoxicating 26 CANCELLATION. See Liquor tax certificate; Revocation. INDEX. 7 1 5 CAPTION. SECTION stating offense in 645 CARRIER. seizure of liquor in hands of 508 CENSUS. as proof of population n 175 CENTENNIAL DAY. a legal holiday in Michigan 117 CEREALS. to be used in manufacture of malt liquors — designation of. . 132 CERTIFICATE. See Liquor tax certificate. of town liquor agent, notice n 98 required to be annexed to application n 248 CERTIORARI. to test validity of license 267 to review proceedings to revoke 329 CHAIRS. ordinance as to n 141 CHAMPAGNE. a liquor within meaning of statute n 35 CHARACTER. of applicant, evidence as to 241 of applicant as a requisite 241 CHARITABLE INSTITUTION. excluding traffic within certain distance of 103 ( II. \i: Tl'.K. See Municipal Corporations. of city, general law as repeal ins: provision of n 71 provisions, repeal of by general law 150 of town authorizing it to collect tax n CHATTEL MORTGAGE. license not subject of n 298 law as to filing of does not apply to assignment liquor tax certificate in New York o 299 CHERRIES. effect of putting of in brandy 27 CHILDREN. See Minor. mother may join as plaintiff tr- action by motber in behalf of 492 injury to means of support of 493 746 INDEX. CHRISTMAS. section a legal holiday n l* 7 CHURCHES. excluding traffic within certain distance of 104 ordinance prohibiting traffic within certain distance of 157 statute as to business within certain distance of n 194 as used in license laws construed 259 CIDER. where declared by statute to be intoxicating 9 not a spirituous, vinous or malt liquor 28 whether intoxicating question for jury 28 defined and considered 28, 29 statutes as to 30 CINNAMON. essence of within statute n 38 CIRCULARS. advertising liquor — statute as to • 60 CIRCUMSTANTIAL EVIDENCE. civil damage cases 400 consignment of liquors 671 manner in which place fitted up 671 bar, glasses and bottles as 671 generally 671, 672 habits of buyer 672 number of people frequenting accused's place 672 persons leaving accused's place in disorderly manner 672 persons leaving accused's place in intoxicated condition 672 finding of liquor in possession of accused 672 efforts to conceal liquor 672 to show intoxicating character of liquor 674 showing knowledge and intent 680 showing keeping for unlawful sale 682 CITIES. See Municipal Corporations. population of as basis for taxation 175 classified for license, transferred from one class to another n 199 CITIZEN. has no inherent right to sell liquor 77 petition for revocation in New York 319 action by on bond in name of state 364 signer petition local option election 383 right to recover penalty °^ y See Injunction and Abatement proceedings by to state nuisance 624 CITIZENSHIP. when petition for license should show 245 INDEX. TIT CITY AGENTS. flfi **™°» authorized to purchase and sell liquors >6, 07, m, a. n 08 not an officer CIVIL DAMAGE ACTS. means of support, where legal obligation to means of support generally, action by wife 4..: 474 474 iii|iirv Id iiii'Miis in Mi|i|j"'i h" J •> means of support, righl of action generally, defense wife must show Lawful marriage means of support, action by wife, effect of divorce «6 means of support, action by wife, pleading '" means of support, anion by wife, evidence of earnings and financial condition " ' means of support, action by wife, evidence as to prior conduct. 479 action by wife, evidence as to age and number of children.... 480 means of support, action by wife, measure of damages, evi- 481 dence mitigation of damages, action by wife n 481, n 485 action by wife, evidence of threats action by wife, evidence of abusive language 4 action by wife, physical suffering, threats, abusive language.. 4 action by wife, assault by husband *** action by wife, injury to property • • ■ whether wife contributed to injury of husband question for n 485 jury action by wife, consent or acquiescence of 485, 486 widow a " person " within meaning of n action by widow, death of husband 487 > 4 action by widow, husband killed by intoxicated person 4S9 action by wife, exemplary damages 4 j>° means of support of mother, sale to son action by mother in behalf of her and children 492 joint action by mother and children **» complaint in action by minors n means of support, action by children action by husband death of intoxicated person, no recovery by personal repre- sentatives , - . 496 action by intoxicated person assault by intoxicated person CIVIL PROCEEDINGS whether proceedings for forfeiture are 500, 546 CLAIMANTS of liquors, seizure, waiver of defects by appearance 537 CLAIM AND DELIVERY. . , 544 to recover liquor seized CLASS. legislation. Local opt ion law not 750 INDEX. CLASSIFICATION. section by population for taxation 175 on amount of business for taxation 176 based on different kinds of liquor for taxation 177 of wholesalers, retailers and manufacturers for taxation 178 for license, cities transferred from one class to another.... n 199 municipal tax based on amount of sales 214 " CLOSED." as used in statute construed n 118 CLOSING. of saloons on certain days 117, 118, 119 designation of hours for 120 of saloon, ordinance as to 146 of places on Sunday where near beer sold, ordinance n 164 on Sunday, ordinance 164 other than Sundays, ordinance 165 municipal power to designate hours of 166, 167, 168 CLUBS. See Social Clubs. statute as to sales by 129 organized to evade law, revocation license to 315 C.O.D. liquors shipped, search and seizure laws 510, 511, 513, 515 COLLATERAL AGREEMENT. another person to sign bond 362 COLLATERAL ATTACK. of license where no notice of application given 251 validity of license 267 COLLECTION. of tax, statute may provide for n 173 COLLECTOR. of internal revenue — copy from books of as evidence 669 COLLECTOR OF CUSTOMS. in Alaska proper petitioner for search warrant 522 COLLEGES. excluding traffic within certain distance of 104 COMMERCE. power of state to pass laws affecting 48, 49 power of state as to, rules stated in Vance v. Vandercook .... 49 power of state as to interstate shipments 50 laws affecting sales in original packages prior to Wilson Act. . 51 INDEX. 751 COMMERCE— Continued. section statute forbidding keeping of liquors for purpose of sale in an- other stale 52 state cannot forbid shipment into state 53 Wilson Act, effect and construction of 54, 55, 57 COMMERCIAL PAPER. legal holidays for n 117 COMMISSIONERS OF EXCISE. See Licensing Boards and Affiants. COMMON CARRIER. statute limiting right of to bring liquor into state 53 city cannot prohibit from bringing liquor into limits without license n 211 seizure of liquor in hands of 508 COMMON COUNCIL. See Municipal Corporations. courts cannot control discretion of 149 COMMON LAW. liquor traffic legitimate at 76 complaint for penalty framed under n 567 COMPENSATION. none for property diminished in value by prohibition 86, 87 COMPLAINT. See Search and Seizure Laws. to recover money paid for license n 199 civil damage actions 457 search and seizure 517 defacement of, search and seizure n 517 not supported by verdict, search and seizure n 517 sworn complaint, search and seizure 518 and warrant in one instrument, search and seizure 520 and warrant, variance between, search and seizure 521 search and seizure, allegations as to liquors 524 search and seizure, allegation of intent, keeping for unlawful sale 525 search and seizure, allegations as to owner or keeper 526 description of place to be searched 527, 528, 529 and warrant, allegations in, seizure without warrant 532 in action for penalty 567 disjunctive averments in 646 See Indictment and information. COMPOUNDS. test whether intoxicating 38 where sold to be used as a beverage 39 where formula prescribed by standard dispensatory 37 Containing alcohol considered 37-42 when held to be within stal ute 40 752 INDEX. COMPOUNDS— Continued. section sold in good faith 40 whether intoxicating', question of fact 41 whether intoxicating liquor, conclusion 42 CONCEALMENT. of liquor, evidence of efforts towards 672 as evidence of keeping for unlawful sale 682 CONDEMNATION. See Search and Seizure. CONDITIONS. in bond. See Bond. affecting liquor traffic. See Police Power, State. as to exercise of right under license 194 as to license, power of city 219 as to revoking license, power of city 220 of bond, substantial compliance with statute sufficient 344 of bond against violating statute 349 as to gambling, bond 351 of bond as to sales to minors 352 of bond as to sales on Sunday 353 of bonds given by hotels 354 of bond to pay fines and costs 355 in bond not required by law 359 of bond to pay judgment for damages 360 CONDITION PRECEDENT. obtaining of license 228 CONDUCT. of defendant as evidence of keeping for unlawful sale 682 CONGRESS. may make it an offense to sell to Indians 43 power of generally as to liquors 43 CONFISCATION. of liquor. See Search and Seizure laws. CONJUNCTIVE. list; of in indictment where statute is disjunctive 647 CONSENT. of owners of dwelling houses, statute as to 102 of common council may be required by ordinance for license. 219 of property owners, a citizen's may be required for license .... 219 where property owner paid for n 250 word " block " construed 254 of owners within a certain distance 254 nunc pro tunc cannot be filed 254 to license generally 254 index. 753 CONSENT— Continued. section right to withdraw n 254 of owner of fee D 254 sufficiency of generally 255 \\ ho may sign 255 owners of dwellings, flat a dwelling 25G statement of, Iowa 380 of parents as bar to action for sales to minors 451 of wife as defense to civil damage action 485, 486 of owners of dwellings, sufficiency and necessity of 25G of majority of police commissioners n 254 riglit to traffic without not extinguished by local option .. n 257 exemption from, abandonment 257 exemption from, New York 257 nearest entrance 258 of class of persons within certain distance 258 charging want of, sale to minor 652 CONSIGNMENT. of liquors as evidence r '~l CONSIGNOR. suit by, that liquor seized in hands of carrier a defense 508 CONSTITUTIONALITY OF LAWS. See Civil Damage Acts; Construc- tion of Laws; Fourteenth Amendment; Injunction and Abate- ment; Municipal Corporations; Ordinances; Search and Seizure. taxation of traffic. See Taxes. of statute designating what are intoxicating liquors n 9 as affected by Fourteenth Amendment 44, 15 prohibitory statute not ex post facto 46 prohibitory statute does not impair obligation of contracts. . 46 as affected by United States Constitution generally 46, 47 stat ute giving discrel ion as to licenses 47 statute as to keeping liquor with intent to sell 47 statute as to license not taking of property without due proc- ess of law 47 affecting commerce 48, 49, 50, 51 affecting sales in original packages, prior to Wilson Act 51 statute discriminating by tax against products of other states. 51 keeping liquor for purpose of sale in another state, law as to. 52 forbidding shipments into state 53 under Wilson Act 55 limiting right to order from another state 55, 56 as to place of delivery and sale 58 as to soliciting orders 59 as to right to advertise 60 754 INDEX. CONSTITUTIONALITY OF LAWS— Continued. section statute as to advertising- by circulars or posters 60 cannot be questioned by one not affected 75 prohibiting traffic 83 requiring license to keep liquors in one's possession 85 prohibiting possession of liquors 85 prohibition, property diminished in value by SB, 87, 88 dispensary laws 90-95 excluding liquor traffic from certain locality 100 statute designating saloon limits in cities and towns 101 confining liquor dealer to one place of business n 105 screen laws 109, 110 prohibiting sales to certain classes of persons 112 prohibiting sales to minors 113 prohibiting sales to women 114 prohibiting employment of women 115 designating hours for closing 120 as to quantity 121 placing druggist on same footing with others n 124 as to sales by social clubs 129 delegating powers to municipal corporations 134 ordinance prohibiting traffic in portions of city 157 ordinance prohibiting women from entering 162 enforcing payment of license fee 198 conferring power on city to prescribe limits 221 as to granting license within certain time after remonstrance. 278 as to sureties ' 347 local option laws generally 368 local option law not a taking of property 369 local option not a delegation of legislative power 371 CONSTITUTIONAL PROVISIONS. See United States Constitu- tional Provisions affecting laws; Search and Seizure laws. as to title and subject matter of act construed 61 local or special laws generally 62 laws to be general and uniform 63 affecting right to sell liquor 7-9 construction and effect of generally 79 negative clauses self-executing 79 as to licensing traffic, taxes 174 giving- legislative power to tax liquor dealers 177 as to no license, applies to wholesalers n 178 as to uniformity of taxation, license fees 189 taxes to be uniform, power of city to license 205 as to mode of local option election 397 as to local option 373 CONSTRUCTION. of ordinances. See Municipal Corporations; Ordinance. of statutes. See Construction of Laws. grants to municipal corporations. See Municipal Corporations. indi.x. 755 CONSTRUCTION OF LAWS. Bee the particular laws. I io.v as to licenses. See License. prohibiting sale or manufacture of intoxicating liquor con- stitutional 46 affecting interstate commerce.... 48, 49, 50, 51, 52, 53, 54, 55, 56, 57 ;is to place of delivery and sale 58 as 1o soliciting of orders « as t(» right to advertise 60 constitutional provisions as to title and Bubject matter of act const rued 61 should be general and uniform 63 as to intoxicating liquors generally 64 reference to prior laws 65 construing laws together 65 word "town" in statute construed 66 statute as to devices for amusement or music in saloons 66 intent of legislature 66 where statute judicially construed is re-enacted 66 where part of act invalid 67 rule as to exceptions in statutes 68 statutes affixing penalty strictly, construed 69 ride as to amendments to statutes 70 repealing laws generally 71 general law as repealing provision in city charter n 71 repeal by implication 72 act denouncing two separate offenses 73 political subdivisions of state, judicial notice in construing... 74 one not affected by law cannot question validity 75 dispensary laws 90-95 as to entrances 106 as to screens 109, 110 words " no license " construed n 110 as to filing list of names of employes 116 prohibiting sales to certain classes of persons 112 prohibiting sales to women 114 closing of saloons on certain days 117, 118, 119 word "closed" cons' rued n 118 as 1" sales by dri 124-128 as to inspection of liquors 130 gent ral law as repealing municipal powers and ordinances.... 150 construing - and ordinances together 152 as to licenses generally , ' 11 as to local option, generally :; ~ : -' CONTEMPT. when not to resist search and seizure warrant 518 : lire by officer of liquors in custody of receiver 540 proceedings to enforce injunction proceedings to punish for, nature of, injunction proceedings, sufficiency of information 633 of injunel ion decree, w hat const it utes 634 of injunction decree, effeel of l court 635 56 INDEX. CONTEST. section local option election not precluded by recount of votes. . . . n 411 local option election an action in rem n 411 of local option election, nature of right, statutes 412 of local option to election, proceedings 413 of local option election, who may contest 414 CONTINUANDO. charging offense with 658 CONTEACT. license is not 186 statute declaring license void does not impair obligation of. n 192 obligation of not impaired by statute as to revocation n 303 CONTRIBUTORY NEGLIGENCE. in civil damage cases 428 CONVERSATIONS. evidence of as showing knowledge 680 between defendant and internal revenue assessor 683 CONVICTION. effect of, refusal of license 285 as ground for revocation, provision in license 308 for violation of law, revocation 313 in revocation statute construed 313 for violation of law, necessity of, liability on bond 350 as prerequisite to abatement 636 CORDIALS. When intoxicating n 38 CORN WHISKY. charge that is intoxicating proper n 34 CORPORATION. nature of right to sell conferred by charter 77 included in words "person or persons" in license statute.... 235 organized as a social club, licenses 235 license to 235 licensing foreign corporations 236 license to officer of, rights under 296 liable for penalty 565 COSTS. of proceedings to revoke 328 bond condit ioned to pay 355 INDEX. 757 COUNTY. section prohibiting sale of liquor in 100 COUNTY COMMISSIONERS. See Licensing boards and Officials. discretion as to license QOt reviewable 274 must act in conformity with powers ~77 cannot delegate power to license 280 COUNTY TREASURER. Liability for money paid for license not issued n 199 COUNTY WARRANTS. Payment of license fee with 106 COURTS. reluctant to interfere with liquor laws n 82 CRAB CIDER. not included in term " spirituous liquors, wine, ale, porter, beer, or any drink of like nature " 28 CREDIT. license issued on. 196 CRIME. committed by person while intoxicated, civil damages 431 CRIMINAL PROCEEDINGS. whether proceedings for forfeiture are 500, 546 CRIMINAL SUIT. proceeding to recover property not 558 CURTAINS. statute prohibiting use of 109, 110, 111 ordinances as to 159 > 160 CUSTODIA LEGIS. liquor seized is in 544 D. DAMAGES. See Civil Damage Acts, Exemplary damages. liability <>f town agent for n 98 druggist Dot liable for in case of refusal to sell 124 suit for, private nuisance 618 DATE. for local option election, failure to name 382 758 INDEX. DAY. SECTION alleged as time of offense need not be proved 677 DEATH. of person signing petition local option election n 383 of son, injury to father's means of support 430 of husband, action by wife for 487, 488, 489 civil damage actions, life tables as evidence 462 of intoxicated person, no recovery by personal representatives 495 DEBT. action of for penalty — nature of 558 DECLARATION. civil damage actions 457 in action for penalty 567 DECREE. See Judgment. in injunction proceedings 630 in injunction proceedings, modification of 631 DEED. covenant in not to sell liquors, enjoining breach of 623 DEFACEMENT. of complaint, search and seizure n 517 DE FACTO OFFICERS. action by in respect to licenses 281 seizure of liquors by 542 DEFENDANTS. joinder of, indictment 640 alleging name of, indictment 641 DEFENSES. See Civil Damage Acts. Good faith. license from United States no defense violation state law.... 84 prosecution for obstructing view of interior of saloon.. 110, 111 in case of sales to minors 113 adulteration no defense to action for liquors sold n 131 inability to obtain license not 229 refusal to issue license not 230 license to sell at one place none for selling at another 293 to revocation, sale in good faith not if unlawful 310 surrender of certificate before discovery of violation not, re- vocation 338 to action on hand, liability for criminal prosecution not 340 non compliance with law, bond, burden of proof n 340 [NDEX. 759 DEFENSES— font in lied. section in action on hotel keeper's bonds action on bond, act done by agent of lice usee 356 action on bond, none that contains conditions not required.. action on bond, breach not ;•( place given in bond 361 sureties cannot set up their neglect as ' want of seal on bond not n 367 indictment violation local option law 376 violation of instructions l>y agenl not, civil damages 436 that seller did not know purchaser was one named in notice.. 446 good faith in sale to minor, civil damages 447 burden of proof, sales to prohibited classes, civil damages.. 4 17 to action for injury to means of support 474 to civil damage action, consent or acquiescence of wife.. 485, 486 suit by consignor, that liquor seized in hands of carrier is.. 508 warrant as justifying officer serving, search and seizure 538 suit against officer for illegally seizing liquors 540 previous conviction of owner of liquors not bar to prosecution against liquors 547 none that intent was that of agent of owner, forfeiture 548 action for penalty, invalidity of ordinance as to 555 action for penalty for sale to minor, belief of defendant not. 556 exception as to action for penalty, sale by druggist 557 to proceeding to forfeit liquor, act of officer in seizing. . 539, 540 to actions for penalties 571 charging class to which belongs 642 decree for injunction as bar to second suit 619 to proceeding for injunction, pleading of 626 to proceedings for injunction and abatement generally 628 effect of discontinuance of nuisance 629 charging matters of 650 to keeping open on Sunday, evidence 679 good faith in making sale 6*0 want of knowledge, keeping for unlawful sale 680 burden of proof as to burden of proof as to consent of parent to sale to minor... 685 burden of proof as to good faith in sale to minor 685 burden of proof as to license or authority to sell 686 evidence as to violation of instructions by agent DEFINITIONS AND TEEMS. alcohol defined l~ ale defined "ardent spirits" defined n "bar-room" denned n 15 beer defined I' 1 "block*' in consent statute brandy cider compounds, tonics and medicines considered 37-42 7G0 INDEX. DEFINITIONS AND TERMS— Continued. section " distilled spirits " 7 " domestic distilled spirits " defined n 7 " dramshop " defined 15, 169 " dramshop keeper " defined 15 " drinking- shop " defined n 15 hard cider 29 gin defined and considered 31 " election day " 117 " holiday " n 117 dram shop 169 habitual drunkard n 453 intoxicated person n 454 intoxication defined 14, n 421' intoxicating- liquors " defined and considered 3, 4, 5, 6 intoxicating liquors, remarks generally 1 lager beer defined 24 license 184 " liquor " defined 2 " malt liquor " defined 12 " near beer " defined n 20 " open house " n 109 owner n 261 porter defined 32 " saloon " defined 15 "spirituous liquors" defined and considered 7, 8 " tavern " defined n 15, n 234 " tippling house " defined 16 " vinous liquors " defined 13 whisky as a spirituous liquor 33 wine defined and considered 35. 36 DELEGATION of power by state. See Licenses, Municipal Corporations. by municipality of power to license 223 of legislative power, local option law not 371 DELIVERY OF LICENSE. license as evidence of 670 DESCRIPTION. of property to be seized in connection with liquors n 516 in complaint of place to be searched 527, 528, 529 of building, indictment 655 DESTRUCTION. of liquors. See Search, Seizure and Forfeiture. of liquors, ordinance as to 146 DIRECT PROOF. See Evidence 671 INDEX. 761 DISCONTINUANCE. section of proceedings to revoke, when court may order n 320 of nuisance as defense, abatement and injunction DISCRETION. municipality cannot delegate power requiring exercise of.... 14'J of common council courts cannol control 149 of legislal are, condil ions in connection with licenses 194 of city as to prohibition 206 of municipal corporation as to amount of fee 215 of legislature as to licenses n 195 granting of license ordinarily matter of 268 in granting license, nature and exercise fcf 269 exercise of as to granting license must be a sound one 269 of licensing board, appeal from action of 274 of mayor in vetoing license not reviewable n 274 as t o approval of bond 343 DISCRIMINATION. against liquors manufactured in other states 179 ordinance imposing different fees not 206 as to licenses, city must not make 211 DISGRACE. damages for 463 DISJUNCTIVE. averments in indictments 646 use of conjunctive where statute is in 647 DISPENSARY. city cannot create under power to control 147 DISPENSARY ACTS. held not repealed 72 DISPENSARY BOARD. may maintain bottling plant n 91 DISPENSARY COMMISSIONERS. not liquor dealers 22S DISPENSARY LAWS. cciist rued 90-95 " DISTILLED SPIRITS." defined 7 lemon ginger not n 40 taxation of 177 DISTILLER. separate license for distilling and brewing n 2SS riffht under license to n 293 762 INDEX. DISTRICT. section excluding liquor traffic from 100 DIVORCE. effect of action by wife for injury to means of support 476 "DOMESTIC DISTILLED SPIRITS." defined n 7 DRAMSHOP. defined 15, 169 DRAMSHOP KEEPER. defined 15 when state must show defendant is 668 DRINKING SHOP. defined n 15 DRIVING. injury received while, civil damages 428, 430 DRUGGISTS. See Pharmacists. sales of compounds and medicines by 37-42 when must close on Sunday 118 restricting privilege of sale to 123 statutes as to sales by 124-128 may be placed on same footing with others n 124 sale only on prescription 125 extent of right to sell 126 returns of sales by 127 where object of purchase must be stated n 127 sufficiency of report by n 127 repeal of act requiring record by n 127 license laws as affecting 202 what necessary to render person one, license laws n 202 ordinance as to permits to be held invalid 211 may be required to obtain license 228 statutes as to bond not generally applicable to 339 liable on bond though act done by clerk 356 provisions in local option laws excepting sales by n 368 instruction as to unlawful sale by, civil damage acts n 427 penalties for sales by 557 action for penalty, when not included in words " or any other person " 565 injunction as to sales by 616 no defense to injunction that sales made by clerk 628 contempt of injunction decree by 634 offense by — burden of proof 668 reports of sales by as evidence 669 record ' 669 INDEX. 7G3 DRUGGIST— Continued. se< i request to for liquor as evidence evidence as to sales by, burden of proof DUE PROCESS OF LAW. See Constitutionality of Laws. constitutional provision as to construed: 47 requiring lirense not denial of 190 local option laws 369 civil damage act not a taking of property without 420 statute making lessor liable not a taking of property without. 441 DUPLICITY. in indictment or information 665 where none in indictment or information 666 DURATION. of license 207 DWELLINGS. statute requiring consent of owners of 102 consents of owners of within certain distance 254 when fiat is 256 sufficiency and necessity of consents of owners of 256 DWELLING HOUSE. " house " not equivalent of, search and seizure law n 517 warrant to search, power of officer 539 E. "EACH CALENDAR YEAR." in license statute construed 297 EDITIONS. of paper, what are separate editions. n 'Jo EFFORTS. t o conceal liquor as evidence 672 ELECTION DAY. defined 1 1 ' closing of saloons on 117 ordinance requiring closing on 165 charging sales on 660 ELECTIONS: LOCAL OPTION. as to pet id mi for generally "term" ami "session" of courl distinguished, time of filing petition for » 381 sufficiency of petition for 764 INDEX. ELECTIONS: LOCAL OPTION— Continued. SECTION as to signers of petition for 383 presumption as to signers of petition, burden of proof 384 duty of officials as to determining- sufficiency of signatures to petition 385 presumption as to commissioners ordering- n 385 to whom order for addressed n 386 order for generally 386 where statute does not prescribe form of order for 386 order in substantial compliance with statute 386 order for need not state exception as to sales 387 failure of order to designate hours for voting 388 errors or omissions in order for 388 designating locality in order for 389 record as to order for 390 notices of, publication and posting of generally 391 notices of, manner and mode of publication 392 failure to designate paper for publication of notice of in., n 392 notices of, presumption as to, burden of proof 393 proof of publication of notice of election n 393 effect of irregularities in connection with preliminaries to. ... 394 when annual election required n 394 provisions as to time of holding 395 time of holding prescribed with reference to another election 396 holding of at place other than lawfully fixed n 397 manner of holding, generally 397 constitutional provision as to mode of 397 where some voters deprived of right to vote 397 when in conformity to general election laws 397 as to the election officials 398 fraud on part of officials of election 398 closing of polls before sunset n 399 as to the hours polls are open 399 as to the voters 400 as to the ballots and ballot boxes 401, 402 returns of, certification 403 order declaring result of, presumption as to preliminary steps 404 sufficiency of order declaring result of 405 errors in connection with order declaring result of 406 record as to 407 where statute requires publication of result of 408 publication of result of for four successive weeks 409 statute silent as to time and manner of publication of result of 410 presumption and evidence as to publication of result of 411 contest not precluded by recount of votes n 411 contest of an action in rem n 411 contest of, nature of right, statutes 412 contest of, proceedings 413 who may contest 414 resubmission of question 415, 416 INDEX. 765 ELECTIONS: LOCAL OPTION— Continued. section conclusiveness of declaration of result, collateral attack 417 judicial notice of adopt ion, necessity of proof of 418 proof of adoption of local option, sufficiency of 419 EMPLOYE. rights of licensee :is affected by acts of, revocation, rebate.. of defendant, evidence as to violation of instructions by 687 licensee may sell by :j '' evidence as to sale by may be sufficient 688 statute requiring filing 1 list of names of 116 duty of licensee as to 290 sales by, civil damages 436, 437, 438 EMPLOYMENT. of women may be prohibited 115 of women prohibited by ordinance I 63 ENDORSEMENT. of approval on bond u "*~ ENTERING. of place between certain hours, ordinances to 168 " ENTRANCE." in statute requiring consent construed 102 to saloons, regulations as to 1°6 to saloons, violations of statute as to 106 consents within certain distance of nearest entrance 258 more than law allows, in junction 616 EQUITY. See Injunction and abatement. statute authorizing proceeding to abate liquor nuisance in 612 power of court of as to enjoining liquor nuisance 615 ERROR. by attorney in signing name to remonstrance a in order for local option election 388 in connection with order declaring result of local option elec- tion 406 in spelling, indictment 639 ESSENCE OF GINGER. not within statute n ••' ESSENCE OF LEMON. not within statute '■■ ESSENCE OF PEPPERMINT. sold to he drank as a beverage 39 766 INDEX. ESTOPPEL. section to deny recitals of bond 345 to question validity of bond 367 EVIDENCE. See burden of Proof; Judicial notice; Presumptions. judicial notice as to what liquors are intoxicating 4, 5 to show intoxicating character of liquor 5 judicial notice of meaning of malt liquor 12 judicial notice, alcohol intoxicating 17 judicial notice, ale malt liquor 18 judicial notice, beer fermented liquor 19 judicial notice as beer being intoxicating 20 that beer intoxicating, necessity of 20, 21, 22 judicial notice, lager beer a fermented liquor n 24 judicial notice, lager beer a malt liquor 24 judicial notice, whether lager beer intoxicating 25 judicial notice, brandy a spirituous liquor 26 judicial notice, apple brandy intoxicating 26 judicial notice, brandy intoxicating 26 judicial notice, gin intoxicating 31 judicial notice, porter intoxicating 32 judicial notice, whisky a spirituous liquor 33 judicial notice, whisky intoxicating 34 judicial notice, whether wine intoxicating 36 to show proportion of alcohol in medicinal compound n 37 judicial notice of political subdivisions of state in construing statute 74 to justify conviction for adulteration n 131 burden of proof on one attacking validity of ordinance...... 142 as to population n 175 presumption as to regularity of proceeding in levying tax... 183 immaterial in action to recover money paid for license n 199 presumption as to validity of ordinance imposing license tax n 214 as to character of applicant 241 burden of proof as to requisite number of signers of petition n 249 authority to sign remonstrance, burden of proof 262 on hearing of remonstrance 265 burden of proof, remonstrances 266 as to grunting other license under similar conditions imma- terial n 268 presumption that refusal of license was for legal reason... n 268 transcript of on appeal from license board n 276 presumption as to license in action to recover for liquor sold n 295 not supporting allegation of not signing consent n 311 of plea of nolo contendere n 313 in proceedings to revoke 325 non-compliance with law, bond, burden of proof. . . : n 340 to show actual approval of bond though not, endorsed on 342 by special excise agents, conviction, bond 350 INDEX. 767 EVIDENCE— Conl in aed. section ;is to age, entry in family Bible n 352 that minor was allowed to enter or remain insufficient 352 hotel keeper must show sale by him was within exception.... 354 in art ion on bond 366 record as evidence of breach of bond 366 as to qualified voter, registration book n 383 presumption as to petition for local option election 383 burden of proof, sifners' petition local option election 384 presumption as to signers' petition, local option election 384 burden of proof, notices of local option election 393 presumption as to notices of local option election 393 of publication of notice of local option election n 393 presumption as to preliminary steps from order declaring re- sult of election 404 as to publication of result of election 411 judicial notice, adoption of local option, necessity of proof of 418 proof of adoption of local option, sufficiency of 419 sales by agent, civil damages 436 burden of proof, sales to prohibited classes, civil damages 447 presumption as to knowledge of intoxication, civil damages, n 454 civil damage actions, generally 458 civil damage actions, preponderance sufficient 459 presumption as to sale, civil damages n 460 civil damages, circumstantial 460 showing sale, civil damage actions 461 civil damages, life tables 462 civil damages, injury to feelings, disgrace 463 of threatening language or vulgar conduct n 465 of earning and financial condition, injury to wife's means of support 478 as to prior conduct, action by wife, injury to means of support 479 as to age and number of children, action by wife 480 as to damages, injury to wife's means of support in action by children for injury to means of support 492 seizure of property for use as 516 in cases of search and seizure ' of sales as showing intent to unlawfully sell, forfeiture of liquors necessity of as to place where liquors seized 550 necessary for condemnation of liquors finding as presumptive evidence of unlawful keeping ;,, action ol i recover penalty \'"v violation of an ordi- nance 55 I in actions for penalties, admissibility in actions for penalties, burden of proof 570 cf nuisance, statutes as to 611 proof required for temporary injunel ion 617 allegations of petition admitted by not filing answers 627 in proceedings for injunction and abatement 627 768 INDEX. EVIDENCE— Continued. sectiox matters of need not be charged in indictment 649 when burden of proof on state 668 violation by druggist, burden of proof 668 violation by dramshop keeper, burden of proof 668 state need not prove negative allegations 668 tax receipt as 669 copy of books of internal revenue collector 669 records of assessor of taxes 669 of police officer who has inspected druggist's register of sales. 669 applications for liquor as 669 record of druggist as 669 reports of sales by druggist as 669 as to license, public records 670 showing granting of license 670 of official keeping record of licenses 670 of irregularity in connection with issuance of license 670 to contradict license 670 license as 670 of probate judge as to issuance of license 670 consignment of liquors to defendant as 671 testimony of railroad agent as to delivery of liquors to de- fendant 671 bill from wholesaler to defendant as 671 circumstantial evidence generally 671 presence of bar, glasses and bottles as 671 manner in which place fitted up 671 of efforts to conceal liquor 672 finding of liquor in possession of accused 672 of person's leaving accused's place in intoxicated condition 672 persons leaving accused's place in disorderly manner 672 number of people frequenting accused's place 672 of habits of buyer 672 burden of proof, intoxicating character of liquor 673 to show intoxicating character of liquor 674 of effect of liquor 674 of quantity necessary to produce intoxication n 674 as to per cent, of alcohol in liquor 674 of effects of " tonics " or " bitters " n 674 opinions as to intoxicating character of liquor 674 Internal revenue stamps on beer kegs as 675 as to kinds of liquor 675 as to place of offense 676 as to time of offense 677 as to sales on Sunday 678 defense for keeping open on Sunday 679 as to keeping open on Sunday 679 of conversations as showing knowledge 680 of intent to sell on Sunday 680 showing knowledge of owner of building 680 INDEX. 7(jg EVIDENCE— Continued. section as to knowledge of defendant 680 as to good faith of defendant 680 as to intent of defendant 680 as to notice sent of character of liquor 680 as to liquor nuisance 681 as to keeping place for unlawful sale liquors Kept for unlawful sale, liquors seized as I liquors kept for unlawful sale, presence of intoxicated persons as as to liquors kept for unlawful sale I ret urn made to revenue collector n ■ license from United States 683 copy of United States revenue collector's records n 683 as to sales to prohibited classes 684 presumption as to knowledge that person is intoxicated 684 burden of proof, defenses 685 burden of proof as to license or authority to sell 686 as to violation of instructions by agent 687 showing sale by agent may be sufficient G^s EXCEPTIONS. in statutes, rule as to construing 68 in statute as to licenses strictly construed against applicants for n 194 as defense to action for penalty, sale by druggist 557 in statute, rule as to charges 663 in statute, application of rule as to charging 664 burden of proof as to 668 burden of proof as to 685, 686 EXCESSIVE DAMAGES. See Civil Damage Acts; Damages. Meas- ure of Damages. civil damage actions 469 EXCESSIVE FEE. paid, right to recover 199, 200 EXCISE COM M I SSIONERS. See Licensing Boards and Officials. EXCISE INSPECTOR. access of to premises, ordinance as to 171 EXCLUSIVE POWER. to city to regidate and license 151 to towns to grant licenses n 226 EXCUSE. See Defenses. EXECUTION of bond. See P.ond. 770 INDEX. EXECUTOR. section transfer of license to n 300 EXECUTORY CONTRACT. one holding- not a freeholder 249 EXEMPLARY DAMAGES. See Civil Damage Act; Damages; Meas- ure of Damages. sales by agent of defendant 437 against owner or lessor 443 sales to minors 452 jury not bound to award n 465 that sale or criminal offense immaterial n 465 threatening language or vulgar conduct n 465 selling without a license n 465 generally 465 statutes as to 466 ground for awarding, right to 467 not punitory in character n 467 no breach of peace 468 evidence in mitigation of action by wife n 485 action by wife 490 actual must be proven n 490 EXEMPTION. from consents, effect of abandonment 257 from consents, New York 257 from consents, continuous occupation, suspension by fire or accident 312 EXPIRATION. of license as affecting revocation 306 EX POST FACTO LAW. statute prohibiting not 46 ordinance as to keeping open saloon after hour not 224 EX POST FACTO LAW. search and seizure law not 498 EXPRESS COMPANY. where liquors seized in hands of, costs against n 510 EXTRA-TERRITORIAL. effect of ordinances 144 F. FACTORY. excluding traffic within certain distance of 103 INDEX. 771 FALSE STATEMENTS. See Application; Petition. section in petition for license n 246 in application, revocation 311 FATHER. See Parent. when not a " person aggrieved " 423 injury to means of support, death of son 430 action by, sales to minors 44'J FAUCET. seizure of beer faucet, search and seizure 516 FEE. See License fees — Taxes. for inspection of liquors, statute as to 130 search and seizure, when justice entitled to n 519 of officers, search and seizure n 538 FEELINGS. injury to, damages for 463 FELONY. person convicted of and pardoned not a convict 241 conviction for, revocation 313 FEMALES. See Women. prohibiting sales to 114 prohibiting employment of 115 ordinance prohibiting sales to 162 ordinance prohibiting employment of 163 ordinance making fee higher in places where employed 214 licenses to 238 FERMENTED LIQUORS. not included in term spirituous liquors 7 where declared intoxicating by statute 10 judicial notice, beer is 19 lager beer is, judicial notice n 24 hard cider is 29 PILING. of remonstrances. See Remonstrances. list of names of employees 116 of petition, signers after n - 19 of petition for license, time of 243 of bond 342 of bond, power of board as to 343 of petition for local option election 381 FINE. See Penalty, Penalty Statutes. ordinance providing for 148 bond conditioned to pay 355 772 INDEX. FIKE. SECTION suspending occupation of premises 312 FIKM. See Partners. rights under license to 295 rights under license to member of 295 sale by unlicensed member of not sale by agent n 295 revocation of license to, sufficiency of service of order to show cause n 314 dissolution of terminates liability of sureties n 340 FITNESS. of applicant for license an essential 240 rights of licensee as to 302 FLAT. a dwelling, consents 256 FOOD. statute forbidding giving away of in saloon 105 FOKEIGN CORPOKATIONS. licensing of 236 FORFEITURE. See Rebate, Revocation, Search and Seizure Laws, Surrender. of liquors. See Search, seizure and forfeiture. of liquors, ordinance as to 146 of liquors, judgment for 551 nature of proceedings for 545 whether proceedings for one civil or criminal 546 proceedings for and for punishment of offender are separate. 547 no defense that intent was that of agent of owner 548 liquor dealt with as the res 548 FORM. of license generally ' 231 FOURTEENTH AMENDMENT. See Constitutionality of laws. Con- stitutional Provisions. Construction of Laws. as affecting power of states 44 does not prevent state legislation as to liquor traffic 45 screen act does not violate 109 ordinance prohibiting traffic in portions of city 157 statute discriminating against liquors manufactured in other states 179 FRANCHISE. subject to taxation, license is 186 FRAUD. on part of election officials, local option 398 INDEX. 773 FREEHOLDER. sectio.v one holding a life estate is 249 who are, signers to petition 249 one holding executory contract not 249 wife of applicant not qualified though freeholder 249 when husband or wife not n 24'J must be bona fide 250 burden of proof to show signers of remonstrance are 266 FRENCH BRANDY. spirituous and intoxicating 26 FRUIT. effect of putting of in brandy 27 preserved in alcohol n 83 G. GAMBLING. evidence of as bearing on character of applicant 241 on premises, revocation for 309 condition in bond as to 351 GENERAL. in operation, statutes should be 63 GENERAL WELFARE CLAUSE. See Municipal Corporations. exercise of power under n 136 power of city under 140 does not authorize city to engage in liquor traffic 147 power of city to license under 212 GENTIAN. tincture of not within statute 37 GTN. an intoxicating liquor, judicial notice 31 defined and considered 31 GINGER. essence or tincture of not within statute n 37 CLASSES. in place as evidence 671 concealment of as evidence of keeping for unlawful Bale 682 GOOD FAITH. See Defenses. in making unlawful sale no defense, revocation 310 evidence as to, necessity of 680 in sale to minor, burden of proof 685 774 INDEX. GRANTING. section of license. See Licenses. GRANTS. of power to municipalities. See Municipal Corporations. GUARDIAN. charging 1 want of consent of, sale to minor 652 burden of proof of as to sale to minor 685 GUEST. at hotel, service of liquor to on Sunday 110 when person is n 316 GUM CAMPHOR. alcohol mixed not a spirituous liquor n 40 H. HABITS. of buyer, evidence of 672 HABITUAL DRUNKARD. sales to, civil damages 453 defined n 453 necessity of knowledge as to, civil damages n 453 HARD CIDER. defined and considered 29 used to distinguish from sweet cider 28 a fermented liquor 29 as to whether intoxicating 29 HEALTH. of wife, injury to as element of damages 482 HOLIDAY. See Legal holiday. closing of saloons on 117 defined n 117 "HOMEMADE BEER." name not controlling 6 HOMESTEAD CIDER. an intoxicating liquor n 3 " HOP BEER." whether intoxicating, question for jury n 20 " HOP TONIC." an intoxicating liquor n 3 INDEX. 775 HORSE. section recovery for loss of, civil damages 428 used in transporting liquor, seizure of 507 HOTELS. licenses for whether building in New York City is n ' i license for, statements in application for transfer of n omission in petition for license for as exempted from obtaining consents revocation license to 316 what is under New York law n 316 breach of bonds given by 354 HOUR. of offense need not be proved n 677 for closing, designation of 120 of closing and opening, municipal power as to 166, 167, 168 prescribed by license board unauthorized 294 pools are open, local option 399 " HOUSE." not equivalent of " dwelling house," search and seizure law. n 517 HOUSEHOLDERS. See Freeholders; Owners; Petition. as signers of petition for license 249 HUSBAND. injury to or death of, recovery by wife. See Civil Damage Acts, action for injury to. See Civil Damage Acts. included in phrase " or other persons " 423 when not a freeholder n 249 action by, civil damages 494 when not " next of kin " 494. 495 I. IMMORALITY. remonst ranee on grounds of 264 IMPLICATION. repeal by '-' repeal of municipal powers by not favored 150 of general law by act conferring power on city 151 repeal by not favored, local option law 372 IMPLIED POWERS. See Municipal corporations. of municipal corporations 136 IMPRISONMENT. ordinance providing for ! ' 8 770 INDEX. INABILITY. section to obtain license, effect of 229 INCIDENTAL POWERS. See Municipal corporations. of municipal corporations 135 INCLOSURES. ordinances as to 160 INDIANS. congress may make it an offense to sell to 43 INDICTMENT AND INFORMATION. evidence supporting and in defense. See Defenses; Evidence. defective in charging sale of "liquors" 2 charging unlawful sale of alcohol 17 charging sale of intoxicating liquor, supported by proof of sale of gin 31 charging sale "intoxicating liquor, to wit: one quart of whisky " 34 term " spirituous liquors " in construed 7 use of " intoxicating " instead of " spirituous "in 8 charging sale of intoxicating liquor, sale of whisky by sup- port s 34 as made of recovering penalty 562 not bar to action for penalty 571 under mulct law in Iowa n 608 defendant not entitled to jury trial n 612 constitutional provision as to charging offense 637 charging the offense, generally 637 charging the offense, application of general rule 638 errors in spelling 639 joinder of defendant 640 name of accused 641 charging class to which defendant belongs 642 name of purchaser 643 allegation as to purpose for which sold 644 stating offense in caption 645 must not charge disjunctively 646 where statute is in disjunctive, use of conjunctive 647 surplusage does not vitiate 648 matters of evidence 649 matters of defense 650 want of a license 651 sale to minor, want of consent of parent or guardian 652 averment as to place generally 653 when specific averment of place required 654 averment as to place, description of building 055 charging time of offense, generally 656 offense consisting of a succession of acts, charging with a con- tinuando 658- INDEX. 777 INDICTMENT AND INFORMATION— Continued. section precise time not essenl ial time of offense, sale on Sundays 659 sales on election day 660 averments as to knowledge 661 averments as to intent 661 general rule as to charging in language of statute 662 rule as to exceptions in statute 663 exceptions in statute application of rule 604 duplicity 665 where not duplicity 666 joinder of offenses 667 INDORSEMENT. on summons, action for penalty n 567 INFORMATION. See Search and Seizure laws; Indictment and In- formation, contempt proceedings, sufficiency of 633 INHERENT RIGHT. none to sell liquor 77 INJUNCTION AND ABATEMENT. where traffic a nuisance, generally 608 INJUNCTION. against enforcement of tax law n 173 to restrain granting of license n 268 right of individual to abate 609 abatement must be by due process of law 609 statutes as to constitutional 610, 611 particular statutes construed 611 statute authorizing proceeding in equity 612 municipal powers generally 613 nature of proceeding 614 statute as to cumulative of other remedies |'>1."> remedy by injunction generally 615 injunctions, instances 616 temporary injunction 617 proof required for temporary injunction right of individual, private nuisance 618 righl to second injunction 619 injunction fraudulently obtained 619 who may be enjoined 620 when injunction against owner of building granted " knowingly permits " in stal ute construed 621 when injunction against owner of building not granted enjoining breach of covenant not to sell liquors 623 who may institute proceedings 624 pel it ion. form and sufficiency of 625 778 INDEX. INJUNCTION— Continued. SECTION answer to petition for 626 evidence 627 defenses generally 628 effect of discontinuance of nuisance 629 judgment a decree 630 injunction effectual after dissolution of firm 630 modifying decree 631 statute as to penalty for violating injunction 632 contempt, proceedings to punish for, nature of 632 contempt, sufficiency of information 633 contempt, what constitutes 634 effect of appearance in court, contempt 635 conviction as prerequisite to abatement 636 IN REM. proceedings for forfeiture are 545 INSOLVENTS. order for transfer of license by n 300 INSPECTION. of liquors, statutes as to 130 INSPECTOR. of liquors, where not appointed n 129 INSTRUCTIONS. as to meaning of intoxication n 421 as to unlawful sale by druggist n 427 to agent, violation of, civil damages ,. 436, 437 to agent, violation of, civil damages 436, 437, 438 INTENT. of legislature, construing laws 66 that of agent of owner, no defense to forfeiture 548 to unlawfully sell, evidence of sales as showing where liquors seized 550 averments as to, indictment 661 when not an element of offense, proceeding for injunction, defenses 628 evidence as to, necessity of 6S0 of purchase in going to saloon not material 680 INTERNAL REVENUE COLLECTOR. copy from books of as evidence 669 INTERNAL REVENUE RECEIPT. as to furnishing public record of 133 INTERNAL REVENUE STAMPS. on beer kegs as evidence 675 INDEX. 77!) INTERSTATE COMMERCE. sectio.v power «>i state as t<> 4s power of state, rules stated in Vanee v. Yandercook 4'.» power of state as to shipments 50 laws affecting sales iii original packages } >i i< > i- to Wilson Acl ... 51 statute forbidding keeping of liquors for purpose 61 sale in another state state cannot forbid shipment into state Wilson Act, effect and construction 54, 55, 57 words " upon arrival " in Wilson Act construed 57 ordinance as to license must not interfere with -11 INTERSTATE SHIPMENTS. power of state as to 50 when state cannot forbid 53 Wilson Act, effect and construction of 54, 55, 57 words " upon arrival " in Wilson Act construed 57 INTERVENORS. proceedings to revoke license 320 INTOXICATED PERSONS. sales to generally, civil damages 447 sales to, civil damages 4" 4 charge as to who is n 4">4 no recovery by personal representatives for death of 495 right of action by 496 recovery for assault by 497 evidence as to sales to 684 INTOXICATING. character of liquor, evidence to show 5 use of instead of spirituous in information 8 character of liquor, burden of proof 673 character of liquor, evidence to show 674 character of liquor, opinions as to ,, ~4 character of liquor, evidence of per cent of alcohol in 674 INTOXICATING BEVERAGES. See Intoxicating liquor. INTOXICATING LIQUORS. remarks as to generally 1 " homestead cider " as n 3 " hop tonic " as n 3 term defined and considered 3 includes more than spirituous liquor n 3 " pop " as n name immaterial 6 where certain liquors are enumerated by statute as 9, 10 whether alcohol is 17 ale as ". 2ft 780 INDEX. INTOXICATING LIQUORS— Continued. section whether beer is 20, 21, 22, 23 lager beer as 25 brandy is, judicial notice 26 whether cider is, question for jur}' 28 hard cider as 29 statute declaring cider to be 30 gin as, judicial notice 31 porter as, judicial notice 32 judicial notice, whisky as 34 whisky as 34 wine as, statutes 36 lemon extract as n 37 whether compounds are, question for jury 41 construction of statutes as to generally 64 no inherent right to sell 77 nature of right to sell 78 constitutional provisions affecting right to sell 79 state may prohibit traffic in 83 taxation based on different kinds of 177 evidence of notice to defendant as to 680 INTOXICATION. defined 14 * n 421 meaning of " must be proximate cause, civil damages 429 knowledge of presumed, civil damages n 454 of persons leaving premises as evidence of keeping for unlaw- ful sale 682 presumption as to knowledge of 684 EN TRANSITU. seizure of property 507 INVALIDITY. of part of statute 67 ISSUANCE. of license. See Licenses. J. JAMAICA GINGER. an intoxicant and spirituous liquor 41 JOINDER. See Pleading. of defendants. See Indictments, of parties. See Parties. of defendants contributing to injury, civil damages 439 of parties, civil damages 456 INDEX. 781 JOINDER— Continued. bbctiob of mother and children as plaintiffs of defendants in indictment 640 of offenses 667 JOINT LIABILITY. of defendants, civil damages 439, 4 in in act ion on bond 363 JUDGMENT. in replevin of liquors seized, power of officer to consent to. . n " ! ! for forfeiture of liquors 551 in injunction proceedings 630 in injunction proceedings, modification of 631 JUDICIAL NOTICE. See Evidence. as to whisky, brandy, rum and gin being intoxicating 4 of meaning of malt liquor 12 t hat alcohol is intoxicating 1" ale a malt liquor 18 beer fermented liquor 19 whether beer intoxicating 20, 21, 22, 23 lager beer a malt liquor ~ 4 lager beer a fermented liquor n 24 whether lager beer intoxicating 25 that brandy is intoxicating 26 apple brandy intoxicating 26 brandy a spirituous liquor 26 gin intoxicating :1 porter an intoxicating liquor whisky a spirituous liquor 33 whisky intoxicating 34 whether wine intoxicating ; '' of political subdivisions of state in construing 74 of adoption of local option -11 s JUDGMENT. liability in bond for JULY. fourth of not a legal holiday n 11T JURAT. controlled by recital in warrant, search and seizure n 519 JURISDICTION. appearance not waiver <>f defects in process as to, search and 537 seizure value of liquors as affecting, search and seizure n 546 7S2 INDEX. JUKY. SECTION whether " hop beer " intoxicating- question for n 20 whether eider intoxicating question for 28 whether peach cider intoxicating question for 28 whether cider vinous or spirituous question for 28 question for whether blackberry wine spirituous 35 whether compounds intoxicating a question for 41 revocation proceedings, no right to trial by jury 327 proximate cause question for, civil damage cases 433 question for whether sale caused or contributed to intoxica- tion 435 whether defendant caused or contributed to intoxication ques- tion for 435 question of knowledge of owner of business for, civil damages n 441 whether wife contributed to injury of husband question for n 485 search and seizure laws not invalid as denying right of trial by 500 question for, where liquors delivered to carrier n 508 defendant not entitled to trial by, injunction and debate- ment n 612 question for as to effect of sale by defendant's servants., n 681 question for as to good faith of instructions to agent.... n 687 JUSTIFICATION. See Defenses. K. KEGS. interval revenue stamps on as evidence 675 KEEPING. for unlawful sale, allegations, search and seizure 525 liquors for unlawful sale, evidence as to 6S2 liquors for unlawful sale, license from United States as evidence 683 KEEPING OPEN. on Sunday, evidence in defense 679 on Sunday, statute as to prima facie evidence 679 on Sunday, evidence as to 679 KEEPING PLACE. for unlawful selling, evidence as to 681 " KNOWINGLY PRINTS." as used in statute construed 621 KNOWLEDGE. See Evidence, Defenses. of agent, owner bound by, civil damages 442 [NDEX. 7-:: KNOWLEDGE— Continued. s , , ,„ )N of lessor as to use of premises, when must be shown 443 as to one being habitual drunkard, necessity of, civil damageB „ r, 3 of owner of building, injunction 621 allegation of injunction 625 of agent imputed to owner of premises averments as to, indictment 661 want of as defense to keeping open on Sunday, evidence.... 679 c\ idence as to, necessity of 680 of owner of building, evidence showing 680 L. LABOE DAY. closing of saloons on 117 LAGER BEER. not included in term " spirituous liquor " 24 a malt liquor 24 a fermented liquor, judicial notice n 24 defined and considered 24, 25 where declared by statute to be intoxicating 25 as an intoxical ing liquor 25 tax on wholesalers in n 178 LANDLORD. See Owner. Injunctions against 621, 622 LEASE. of premises by brewing company for purpose of sale of beer n 235 provision in against unlawful business, injunction againsl owner 621 conditions in connection with, enjoining breach of 623 LEGAL HOLIDAYS. closing of saloons on 117 Christinas is n 117 for commercial paper n 117 holiday defined n Fourth of July not n 117 LEGAL VOTERS. as remonstrants n 261 synonymous with "registered notes," local option petition.. LEGAL REPRESENTATIVES. of licensee no right to sell 292 LEGISLATIVE POWER. local option law not delegation of 371 7S4 INDEX. LEGISLATURE. See Police Power, State, Statutes. section' intent of in construction of laws 66 limitations in power of, search and seizure 503, 504 LEMON. essence or extract of not within statute 37 LEMON EXTRACT. as an intoxicating liquor n 37 LEMON GINGER. not distilled spirits n 40 LESSEE. See Injunction and abatement. LESSOR. statute making liable civilly is constitutional 441 liability of under civil damage act 441 exemplary damages against 443 injunction against, nuisance 621, 622 See Injunction and Abatement. LEVY OF TAX. presumption as to regularity of proceeding in 183 license as subject of 301 LICENSE. See Licensing Boards and Officials; Rebate; Remon- strance; Revocation of license; Rights under license; Sur- render; Transfer. from United States confers no right to violate state laws.. 84 to keep liquors in one's possession, statute requiring uncon- stitutional 85 words " no license " construed n 110 grant to city of power to 139 exclusive power to city to regulate and 151 LICENSE. levying of tax not n 174 defined I s -* purpose of 185 not a contract 186 no Nested right created by 187 not property 187 a franchise subject to taxation 186 right under New York statute 188 not a tax, uniformity of taxation 189 laws are constitutional 190 laws an exercise of police power 190 INDEX. 785 LICENSE— Continued. BECTIOS power of state as to 1 '" 1 statutes should be construed together " 190 statutes are restrictions " construction of facts generally I'' 1 law will not operate retrospectively ''' subject to laws in force and subsequently passed ' subsequenl laws prohibiting salt's on certain days n subsequent law declaring void 19 subsequent law increasing fee n 19 effect of repealing acts on ' '■' ■ legislature may prescribe conditions 194 exceptions in statute strictly construed againsl applicants for " 19 4 power of legislature as to amount of fee 195 legislature has large discretion n 195 issued on credit 196 payment of fee in advance 196, WJ payment of fee and mode of 196, l'-'< enforcing payment fee 198 right to recover fee paid 199, 200 complaint to recover money paid for n 199 where cities transferred from one class to another n 199 evidence immaterial in action to recover money paid for license n 199 residence as perequisite to right to 201 limited to white male inhabitant 201 provisions as to whom may issue to : " ' laws as affectine - druggists 202 laws as affecting physicians 202 local boards may be authorized to regulate and license 203 state may delegate power to license to municipalites 204 power to city to license repeals as to city prohibiting law for °04 county ~"* act amending void act n 204 charter amendment fixing amount of fee n 204 different license fee in different cities n 204 whether ordinance as to for revenue or regulation power of city to license, regulate and prohibit construed. 205, municipal power -' ordinance imposing different fees 206 discretion of city to prohibit a license or regulate to hotels, conforming issuance of n 206 sales of social clubs n ~""' municipal power to prescribe penalty failure or refusal of city to license 203 power of city to under different clauses 200 grants to municipal corporations strictly construed 200 power to municipal corporations must be clearly given 209 municipal corporations must not exceed power granted 210 786 INDEX. LICENSE — Continued. section number city may grant limited 210 municipal corporations must not discriminate, interstate com- merce 211 on brewery, distilleries and depots, ordinance 211 power under general welfare clause in charter 212 power of municipality must be exercised by ordinance 213 right of municipal to impose fee or tax generally 214 discretion of municipal corporation as to amount of fee 215 municipal corporation must not impose prohibiting fee.... 216 amount of fee imposed by municipal corporation as affected by state fee 217 city may require license fee although state also does 218 to sell on steamer n 218 municipal power to impose conditions and regulations 219 municipal conditions as to revoking 220 municipal power to prescribe limits for licensing traffic 221 municipal corporation may license in one section and prohibit in another 221 ordinance void in part 222 delegation of power by municipality 223 subject to valid ordinance 224 as to repeal of municipal powers 225 right to defendant on submission to vote 226 right to generally 226 where denial of a discrimination 226 right to renewal of 226 exclusive power to town to grant n 226 payment of less fee than law requires 227 payment of fee prerequisite to 227 strict compliance with law essential to right to 227 tender of fee not sufficient n 227 necessity of obtaining 228 inability to obtain, effect of 229 refusal to issue, effect of 230 when must be in writing 231 form of generally 231 city and county license may be required 232 state and city license may be required 232 more than one may be required 232, 233 liquor sold in connection with other business 233 for hotels and taverns 234 right to refuse license to sell in restaurants n 234 to corporations 235 to whom may issue 23."i to foreign corporations 23H to partners 237 to women 238 removal permits, application 239 applicant must possess requirements, fitness 240 lNDKX. 787 LICENSE— Continued. section as to character of applicant 2 effect of averment in protest as to unfitness n 241 ;is to petition or application 242 time of filing- petition for 243 description <>f premises in petition for : - " statements in petition for as to applicant false statements in petition 246 omission in petition to answer 246 omission to s*ate name of owner of premises in petition for. . 247 amendment to petition for 247 petition for defective 247 petition for, recommendation for, signing of 248 petitions for may be combined n 248 petition for, who are freeholders 249 burden of proof as to number of signers of petition for n 249 freeholders must be bona fide petition 2 50 necessity of notice of application for 2 51 necessity of publication of notice of application 252 sufficiency of publication of notice of application 253 as to consents generally 254 right to withdraw consent n -' ' ' consent of owner of fee n 2 '^ 4 consent of majority of police commissioners n 254 sufficiency of consents, signers. 255 sufficieacy and necessity of consents of owners of dwellings.. 256 exemption from consents, New York 2 57 exemption from consents, adoption of local option does not ext inguish n :::,T consents within certain distance, nearest entrance 258 laws, " schoolhouse " as used in construed 259 laws, " church " as used in construed 259 remonstrances generally 26 ° persons authorized to remonstrance 26i ,,xn ncr of land defined n 26] signing of remonstrances 262 right to withdraw from remonstrance form and sufficiency of remonstrance remonstrances, hearing of, procedure, appeal 265 remonstrances, burden of proof 266 mode of testing validity of, collateral attack 267 granting of ordinarily matter of discretion aa1 are of discretion and exercise of in granting 269 officials' duty ministerial as to granting license, must issue it. compelling issuance of 271 mandamus to compel issuance, what essential to show 272 mandamus to compel issuance of receipt 273 mandamus to enforce action on application 273 board having discretionary power, right to appeal from action of.. 274 where appeal from licensing board allowed, parties -• 5 788 INDEX. LICENSE — Continued. section where appeal allowed, procedure and practice 276 where appeal from action of licensing board allowed, procedure and practice 276 board must act in conformity with powers 277 power of board as to time of granting 278 board no power to grant license to sell in forbidden locality 279 board cannot delegate power 280 action by officers de facto as to 281 ordinance granting, duty of official to sign 282 clerks should not depart from order of court in issuing 283 refusal of for violation of law 284 refusal for violation of law, effect of conviction or decree 285 qualifications of licensing officials 286 terms of as limiting right 288 when it takes effect 289 duty of licensee to obey laws, as to employees 290 licensee may sell by agent 291 personal representative of licensee no right to sell 292 as to place of sale 203 where license board prescribes unauthorized hours 294 to firm, rights under 295 to member of firm, rights under 295 presumption as to in action to recover for liquor sold n 205 to officer of corporation, rights under 296 duration of 207 not assignable 298 not subject of chattel mortgage n 298 transfer of liquor tax certificate in New York ■ 299 transfer of in Pennsylvania 300 as subject of levy and sale 301 rights of licensee as to stock and fixtures 302 revocation of generally 303 power of municipality to revoke 304 where statute specifies causes for revocation 305 expiration of as affecting revocation 306 revocation of by repeal of law 307 provisions in as to increase of fee 308 provision in as to forfeiture 308 grounds for revocation of generally 309 revocation for unlawful sales 310 revocation for false statements in application 311 statement as to continuous occupation, suspension by fire or acci- dent, revocation 312 revocation for conviction for violation of law 313 revocation of to partners 314 to club organized to evade law, revocation 315 to hotels, revocation of 316 petition for revocation of 317 answer in proceedings to revoke 318 INDEX. 789 LICENSE — Continued. section parties t<> proceedings to revoke .il!» revolution, wlm may intervene 320 proceedings for revocation of 32] revocal ion, appoinl ment of referee 323 exercising power to revoke, mandamus ■''•-! evidence in proceedings to revoke 32S staying proceedings to revoke .''<_'<; revocation, no right to trial by jury 327 costs of proceedings to revoke 328 review of proceedings to revoke '■'■-■> revocation, right to rebate, no statute 330 revocation, righl to rebate, where statute 331 surrender, right to rebate, New York 332-336 rights of licensee as affected by acts of employe, revocation, rebate. 337 revocation, effect of surrender before discovery of violation 338 laws, effect of adoption of local option on '!7ti no protection, civil damage acts 125 want of need not be proved in action for penalty 570 charging want of in indictment 651 record showing granting of, evidence G70 as evidence G70 testimony of public official as to t'.7u no evidence to contradict 070 from United States as evidence GS3 to sell, burden of proof as to 680 See License; Remonstrance; Revocation; Rights under license. LICENSE FEE. statute requiring not a taking of property without due process of law 47 power to municipality to exact construed 139 ordinance as to application of monies from 14»l disposal of dependent on statute 181, 182 not a tax Ism subsequent law increasing n ] u 2 power of legislature as to amount 1 95 payment of with certificate of police commissioners 196 payment of with county warrants 196 not given in payment of 197 enforcing payment of 198 right to recover where paid 199, where excessive fee demanded and paid 199, 200 different in different cities n 20 l charter amendment fixing n 204 ordinance imposing different fees 206 power of city to fix must, be exercised by ordinance 213 power of city to fix generally 214 ordinance, making it higher in places where females employed.... 214 paid, license void, right to recover 214 790 INDEX. LICENSE FEE— Continued. section imposed by city not a tax n 214 by city should not be prohibitory 216 amount of city fee as affected by state fee 217 city may require one although state also does 218 payment of prerequisite to license 227 payment of less sum than law requires 227 tender of not sufficient n 227 power of city to exact additional fee 232 LICENSING BOARDS AND OFFICIALS. granting license ordinarily matter of discretion 268 refusal for reason not applicable n 268 question public necessity a convenience as for n 268, n 274 no prohibition to restrain void grant n 268 refusal for reason inconsistent with fair discretion n 268 no injunction to restrain n 268 nature of discretion and exercise of in granting license 269 discretion must be a sound one 269 must not act capriciously 269, 271 when act ministerial must issue license 270 compelling issuance of license 271 mandamus to compel issuance of license, what essential to show. . . 272 mandamus to enforce action on application 273 mandamus to compel issuance of receipt 273 having discretionary power, right to appeal from action of 274 whether liable criminally n 274 discretion of mayor in vetoing license not reviewable n 274 where appeal allowed, parties 275 no appeal from order overruling remonstrance n 275 bond on appeal from n 276 no formal pleadings on appeal from n 276 must act in conformity with powers 277 power of as to time of granting 278 no power to grant license to sell in forbidden locality 279 cannot delegate power 280 action by officers de facto 281 duty of official to sign license granted by ordinance 282 clerks should not depart from order of court in issuing 283 refusal by of license for violation of law 284, 285 refusal of license for violation of law, effect of conviction or decree. 285 qualification of 286 liability of 287 city not liable for act of n 287 prescribing hy act of unauthorized house 294 righl to revoke transfer of license n 299 appeal from order of transfer of license n 300 exercise of power to revoke 324 revocation by, member disqualified n 324 revoking license, recovering proceedings 329 sole power to board to grant licenses n 369 INDEX. 791 LICENSES. See Bonds; License. BEOTIOH LICENSE TAX. receipt for as evidence. See License; Taxes LIEN. where tax is made lien by statute L80 against owner, civil damages 4 H holder of is freeholder 249 LIFE TABLES. as evidence, civil damage cases 4ii^ LIGHT. at night, ordinance as to 161 LIMITATIONS. on legislative power, search and seizure 503, 504 LIMITS. for licensing traffic, power of city as to 221 LIQUIDATED DAMAGES. amount named in bond not 348 amount as penalty for sale to minor 556 LIQUOR. seizure of. See Search and Seizure Law ; Intoxicating Liquor. indictment charging sale of defective 2 denned and considered 2 LIQUOR DEALERS. taxation of. See Taxes. LIQUOR NUISANCE. i\ idence as to place of 6*6 LIQUOR TAX CERTIFICATE. See License. in Xrw York a species of property 188 in New York not subject of levy 301 failure to display, revocation surr aider of, right to rebate. New York 332 336 procedure to obtain rebate ' * conversion of, county treasurer not guilty of " mandamus to obtain rebate ; '-' violation by assignor of " ' right of assignee of to rebate ■•"'• where surrendered before discovery of violation 338 void from inception, surety not liable on bond ■''■'■ surrender of, surety on bond not liable for act after 358 transfer of in New York -'•''• in New York, law as to filing chattel mortgage does not apply to assignment of n 2 " 792 INDEX. LIQUOR TAX CERTIFICATE— Continued. section in New York is personal property n 299 revocation for false statements in application 311 revocation conviction for felony 313 to club, revocation of 315 to hotels, revocation of 316 sufficiency of service of order to show cause, revocation n 314 assignee of as party to proceedings to revoke 319 revocation of, appointment of referee 323 staying proceedings to revoke 326 costs of proceedings to revoke 328 LIQUOR TRAFFIC. remarks as to generally 76 legitimate at common law 76 no inherent right to sell liquor 77 nature of right to sell 78 power of state to engage in 88 power of municipality to engage in 147 LISTING. of person for assessment of taxes n 173 LOCAL BOARDS. See Licensing Boards and Officials; Municipal Cor- porations. may be authorized to regulate and license 203 LOCAL OPTION LAW. See Petition for local option election. in force in county, general law prohibiting sale in such county un- constitutional 100 districts, regulation of sale in for medical purposes n 125 adoption of does not extinguish right to traffic without consents, n 257 matter of police regulation 368 part invalid as a discrimination 368 constitutionality of generally 368 word " municipality " applies to hamlets n 368 provisions excepting sales by druggists n 368 provision in village charter as to constitutional n 368 what is a political subdivision n 368 not a taking of property 369 not special or class legislation, uniform and general 370 not a delegation of legislative power 371 construction of generally 372 repeal by implication not favored 372 not repealed by act charging name of township after adoption of. n 372 constitutional provisions as to 373 as repealing prior laws 374 merely suspends prior laws 375 effect of adoption on license laws 376 resident of local option territory may purchase in wet territory for own use 377 INDEX. 793 LOCAL OPTION" LAW— Continued. section binding effect of note on entire subdivision ::7^ effect of note, where boundaries charged 379 statement of consent, Iowa as to the petition generally 381 sufficiency of petition 382 as to signers of petition petition, presumption as to signers, burden of proof 384 petition, duty of officials as to determining sufficiency of signature election, order for generally .: ., time of holding election prescribed with reference to another election order for election need not state exceptions as to sales 387 errors or omissions in order for election designating locality in order for election 389 record as to order for election 390 notices of election, publication and posting of generally 391 notices of election, manner and mode of publication 392 notices of election, presumption as to, burden of proof 393 effect of irregularities in connection with preliminaries to election. 394 provisions as to time of holding election 395 manner of holding election, generally 397 as to the election officin 1 \ 398 as to the hours pools are open 399 as to the voters 400 as to the ballots and ballot boxes 401, 402 returns of election, certification 403 order declaring result of election, presumption as to preliminary steps 404 sufficiency of order declaring result of election 405 errors in connection with order declaring result of election 406 record as to election 407 where statute requires publication of result of election 408 publication of result of election for four successive weeks 4o'.i statute silent as to time and manner of publication of result of election 4 1 1 1 presumption and evidence as to publication of result of election. . . 41] contest of election, nature of right, statute 412 contest of election, proceedings 41:5 who may contest election 44, 4; } resubmission of question 41.->, 4 is conclusiveness of declaration of result, collateral attack 417 judicial notice of adoption, necessity of proof of proof of adoption of, sufficiency of 419 LOCATION. of premises in petition for license 244 LOCALITY excluding liquor traffic from specified locality 100 ordinance prohibiting traffic in portions of city 156, 1">7 77 MORAL CHARACTER. seci ro» of applicant for license as a requisite 241 MORTGAGE. whether tax lien junior to 180 MORTGAGEE. no injunction against 620 MOTHER. See Parent. action by, sales to minors 450 action by, civil damages, sufficiency of declaration n 4",7 injury to means of support, of sale to son 4!>1 is a " person aggrieved ", sale to son 4'.i 1 action by in behalf of her and children 492 and children may join in action 4M2 MUNICIPALITY. See Municipal Corporations; Ordinances. MUNICIPAL CORPORATIONS. excluding liquor traffic within certain distance of 100 state may designate saloon limits in 101 may prohibit employment of women 115 legislature may delegate powers to 1.34 grants to strictly construed 135 incidental or implied powers 136 power to suppress, regulate or restrain 137 grant of power to as affected by constitutional provision 138 power to prohibit 138 when cannot prohibit 138 grant of power to regulate, restrain or license 139 no power to prohibit under grant of power to regulate or restrain. 139 power given to regulate wholesale and retail traffic n 139 ordinance under general welfare clause as to keeping for unlawful sale 140 ordinances should be general and uniform 141 ordinances should be reasonable 142 ordinances having extra territorial effect 144 ordinances should conform to law of state 14"i ordinances imposing tax under general welfare clause 14n ordinance as to application of license monies 14:i ordinance as to closing of saloon by force 146 power to engage in liquor traffic 147 ordinance providing for fine or punishment 148 cannot, delegate discretionary power 14!> power of municipal officers 149 general law as repealing powers of 150 exclusive power t<> city to regulate and license 151 act conferring power on city as repealing general law 151 construing statutes and ordinances together 152 statute and ordinance making same act an offense 153 798 INDEX. MUNICIPAL CORPORATIONS— Continued. section construing ordinances together 154 ordinance invalid or invalid in part 155 prohibiting in portions of city 156, 157 prohibiting wholesalers in certain section n 156 prohibiting saloons near parks n 156 as to ordinances where territory annexed to city 158 ordinances as to screens, etc 159 ordinances as to stalls, booths or inclosures 160 ordinance prohibiting sales to minors 161 prohibitions as to women 162 prohibiting employment of women 163 requiring Sunday closing 164 requiring closing on other than Sundays 165 power to designate hours of closing and opening 166, 167, 168 light at night in saloon 167 prohibiting entering of place during certain hours 168 ordinances as to quantity 169 ordinance as to who may conduct business 170 ordinance as to excess of officials to premises 171 ordinance affixing penalty 172 no inherent right as to taxation n 173 may accept note for license fee 197 delegation to of power to license . . . . : 204 charter amendment fixing license fee n 204 charter amendment conferring power to license n 204 nature of power to license 205 whether ordinance for revenue or regulation 205 exercise of power to license 205, 206 power to license, regulate and prohibit construed 205, 206 ordinance imposing different fees 206 discretion to prohibit or license and regulate 206 license to social clubs n 206 power to prescribe penalty 207 failure or refusal of to license 208 power to license under different clauses 209 power to license must be clearly given 209 grants to license strictly construed 209 must not in licensing exceed power granted 210 no power to take bond 210 number of licenses city may grant limited 210 when may impose occupation tax 210 must not discriminate, licenses, interstate commerce 211 ordinances as to license must not interfere with interstate commerce. 211 cannot prohibit reception of liquors within limits n 211 power to license under general welfare clause 212 power to license cannot be exercised by ordinance 213 power to impose fee or tax generally 214 power to increase fee 214 discretion as to amount of fee 215 ixdkx. 799 MUNICIPAL CORPORATIONS— Continued. i ion should not impose prohibitory license fee :i|i; amount of license fee as affected by Btate fee -17 may require license fee although state also does 218 power to license does not exempt licensee from payment of state fee. J I - power to make regulations as to licenses 219 power to impose conditions as to licenses li 1 * » power to impose conditions as to revoking license 220 power to prescribe limits for licensing traffic 221 may license in one section and prohibit in another 221 ordinance as to license void in part 222 delegation by of power to license 223 as to repeal of powers to license 225 where charier of town authorizes it to collect tax n 226 exclusive power to grant license n 22G delegation to of power to license does not deprive state of power. . . . 232 power to exact additional fee 232 power to require license of merchant -'■'>■'• owner fee to park is owner n 201 not liable for acts of licensing officials n 287 power to revoke license 304 not liable in tort for mistaken action in revoking 304 right to revoke license under power to regulate n 304 limitation on power to revoke 305 provision for revocation for conviction 313 ordinance as to how license may be revoked 321 seizure of liquor in hands of officers of 505 ordinances as to penalties generally 554 ordinance as to penalty, contesting validity of 555 power as to liquor nuisances, ordinances 613 MUNICIPAL OFFICERS. as to powers of 149 MUNICIPAL POWERS. See Municipal Corporations. MUNICIPAL REGULATIONS. See Municipal Corporations. MURDER. causing loss of support, civil damages 4:27 N. NAMES. of liquor immaterial of employees, filing list of 116 of liquor sellers, ordinance as to reporting n 219 of freeholders as sureties for petitioner - 1- of owner of premises, omission to state in petition for license 247 of signers of local option petition withdrawal of n 383 in complaint of persons sold to, action for penalty n 567 sou INDEX. NAMES— Continued. section of accused, indictment 641 of purchase of liquors, charging of in indictment 643 "NEAR BEER." defined n 20 city may prohibit sale of in certain sections n 156 ordinance prohibiting screens in places where sold n 159 ordinance as to closing on Sunday places where sold n 164 ordinance as to quantity n 169 ordinance as to who may sell 170 NEAREST ENTRANCE. consents within certain distance of 258 NEGATIVE ALLEGATIONS. state need not prove 668 NEGLIGENCE. in civil damage cases 428 NEWSPAPERS. statutes as to advertising in 60 publication in of notice of application 252-253 " NEXT OF KIN." husband not included in 494-495 NICKEL SLOT MACHINE. breach of condition of bond as to gambling 351 NOLO CONTENDERE. evidence of plea of n 313 NOTE. given in payment of a license fee 197 for transfer of license void 298 adopting local option, binds entire subdivision 378 NOTICE. as to liquors seized 536 to defendant not necessary, temporary injunction 617 not to sell, civil damages. See Civil Damage Acts. certificate of town liquor agent n 98 of application, necessity of 251 of application for license, necessity of publication of 252 of application for license, sufficiency of 253 of proceedings to evoke, necessity of 322 of election for local option, publication and posting of . . . . 391, 392, 393 not to sell, civil damages 444-445 not to sell, civil damages, where right of action accrued n 445 not to sell, sufficiency, allegation of service, civil damages n 445 not to sell, civil damages, pleading n 445 INDEX. 801 NUISANCE. See Injunction and Abatement. section liquor business not per se 608 statute- ae to place being '. 611 municipal powers as (2 violation ordinance as to employment of women 163 violation ordinance as to Sunday closing 1 * "> 4 violation of ordinance is to sale without license 207 charging of generally 637 802 index. OFFENSE — Continued. SECTION charging of, application of general sales 638 charging time of, indictment 656 charging of, precise time not essential 657 charging time of, continuando 658 sales on Sunday, charging of 659 joinder of 667 burden of proof on state to show 668 evidence as to time of 677 sales on Sunday, evidence 678 keeping open on Sunday, evidence 679 keeping place for unlawful selling, evidence as to 680 evidence as to intent, knowledge or good faith of defendant 680 keeping place for unlawful sale, evidence as to 682 OFFICERS. Search and seizure by. See Search and Seizure Laws. of corporation, license to, rights under 296 OFFICIALS. See Licensing Bonds and Officials. ordinance as to access of to premises 171 OMISSIONS. to answer in petition for license or certificate 246 in order for local option election 388 OPAQUE GLASS. not violation of screen law Ill " OPEN HOUSE." meaning as used in bond n 109 OPENING. municipal power to designate hours of 166, 167, 168 OPINIONS. of witnesses as to whether liquor intoxicating 674 OR ANY OTHER PERSON. penalty statute, druggist not included 565 ORDER. For Election, Local Option Laws. for liquor, statute as to soliciting 59 to show cause, sufficiency of service of, revocation n 314 to show cause, extension of return day, revocation n 320 ORDINANCES. See Municipal Corporations. prohibiting employment of women 115 permitting saloons to remain open on July 4th invalid 117 not prescribing penalty void 137 as to club held invalid 138 forbidding sale in certain class of stores construed 139 INDEX. mi:; ORDINANCES— Continued. section as to keeping for unlawful sale construed 1 W should be general and uniform 141 as to chairs and seats n 141 presumpl ion aa to validity 142 should be reasonable 14- title of, surplusage in 143 having extra territorial efTect 144 incorporating provisions of statute n 144 should conform to law of state 145 under general welfare clause imposing tax 14»i as to application of license monies 146 closing of saloon by force 146 as to forfeiture and destruction of liquors invalid 14f> providing for fine or punishment 148 general law as repealing 150 construing statutes and ordinances together 152 statute making same act an offense 1"> ;; construing ordinances together 154 repealing former ordinance 154 of repeal void in part 154 invalid or invalid in part 154 invalid not a repeal of former ordinance 155 prohibiting traffic in portions of city 156, 157 prohibiting wholesales in certain sections n 156 not declaring boundaries of residence and business portions.... n 156 prohibiting traffic within certain distance of school or church.... 157 diminishing value of business 157 where territory annexed to city 158 as to screens, etc 150 prohibiting screens in places where near beer sold n 159 as to stalls, booths or inclosures 160 prohibiting sales to minors 161 prohibiting sales to women 162 prohibiting employment of women 163 requiring Sunday closing 164 closing on Sunday places where near beer sold n 164 requiring closing other than Sundays 165 as to hours of operating and closing saloons 166, 167, 168 as to light at night 167 forbidding entering of place during certain hours 168 as to quantity 169 as to quantity near beer n 169 as to wli<> may conduct business 170 as to access of officials to premises 171 affixing penalty ! '- of county imposing higher license 203 whether for revenue a regulation 205 different license fee not discriminatory "'"' as to license fee invalid n 206 804 INDEX. ORDINANCES— Continued. section imposing tax construed n 206 prescribing penalty, licenses 207 as to license must not interfere with interstate commerce. . . . 211 prescribing qualification of licenses invalid 211 power of city to license must be exercised by 213 imposing license tax, presumption as to validity of n 214 imposing conditions and regulations, licenses 219 as to reporting name of liquor sellers n 219 as to license void in part 222 license subject to valid ordinances 224 of county as to remonstrance n 260 granting license, duty of official to sign 282 as to how license may be revoked, should be followed 321 as to search and seizure invalid n 498 as to penalties generally 554 as to penalties, contesting validity of 555 as to liquor nuisance, statement 613 ORIGINAL PACKAGES. legislation affecting sales in prior to Wilson Act 51 " OR OTHER PERSONS." construed 423 includes husband, civil damage acts 494 ORPHANS' HOME. excluding traffic within certain distance of 103 OWNERS. of dwelling house, state may require consent of 102 of property paid for his consent n 250 consents of within a certain distance 254 of fee, consent of, who is n 254 consent of required, signing by lessee not sufficient 255 agent of may sign consent 255 duration of consent signed by 255 duly authorized may sign consents for other owners 255 of dwellings, sufficiency and necessity of consent of 255 OWNER. of property as remonstrant 261, 262 city holding fee to park is owner n 261 defined n 261 liability of under civil damage acts 441, 442 of premises, qiiestion of knowledge of for jury, civil damages n 441 of premises, act ion against, civil damages n 441 exemplary damages against 443 lien against, civil damages 444 i.ndkx. S (ir, OWNER — Continued. section of liquors, allegations in complaint as to, Bearch and seizure. 526 of building, when Injunction against granted 621 of building, words "knowingly permits" in statute con- strued 621 of building, when injunction against not granted <<~- knowledge of agent of imputed to 628 of building, evidence showing knowledge of 680 P. PAINTED CLASS. violates screen law Ill PAREGORIC. not within statute 37 PARENT. is a " person aggrieved " 423 actions by generally, sales to minors 448 sales to minors, action by father 449 sales to minor, action by mother 450 consent of as bar, sales to minor 4"ii sales to minors, exemplary damages 452 obligated to care for son as result of injury 472 charging want of consent of, sale to minor 652 burden of proof as to consent of to sale to minor 6*5 PARK. prohibiting saloons near n 156 city holding fee to is owner n 261 PARTICULAR DESCRIPTION. in application defined n 2 1 1 PARTIES. appeal from action of licensing board 275 to proceedings to revoke 319 proceeding to revoke, made of obtaining jurisdiction of.... n 320 to actions on bonds 364 PARTITIONS. statute forbidding use of 109, 110. Ill ordinances as to 15'.), 160 PARTNER. See Firm. license to 2:17 petition for license should give names 245 rights uniler license to a partner 295 rights under license to firm 295 806 INDEX. PARTNER— Continued. SECTION sale by unlicensed partner not sale by agent n 295 note given for partner's interest, whether sale without a license n 297 violation of law by one partner, revocation 314 revocation license to, violation of law 314 sale to partner of another interest not violation, local option law n 376 injunction against effectual after dissolution 630 PARTNERSHIP. license to 237 PATENT MEDICINES. See Compounds, Medicines. whether intoxicating 37, 42 when intoxicating n 38 PAYMENT. See License fee; Taxes. of license fee prerequisite to license 227 PEACH BRANDY. charge that will produce intoxication proper 26 an alcoholic liquor n 26 PEACH CIDER. question for jury whether intoxicating 28 PEACHES. effect of putting of in brandy 27 PENALTIES. See Fine. statutes affixing strictly construed 69 license from United States no protection against 84 See fine. FINE. sale of adulterated liquor 131 ordinance affixing 172 power of city to prescribe 207 by ordinance for keeping open saloon after certain hour not ex post facto 224 when sureties on bond not liable for 340 on bond left blank 346 of bond should generally be stated in 348 statutes as to generally 553 ordinances as to generally 554 not on tax n 554 contesting validity of ordinance as to 555 sales to minors 556 amount as penalty held liquidated damages 556 failure of druggist to make return 557 iM)i:x. 807 PENALTIES— Continued. BBCTIOH sales by druggists ■■■ proceeding to recover in nature of a civil suit nature of proceeding for when cit izcn may recover when action brought by public official who may enforce officials designated to sue cannot delegate power 560 for whose benefit recoverable ,1,1 indictment as mode <>f recovering 562 waiver of right as to civil act ion for method of recovery prescribed by statute attachment as mode of recovering recovery generally, proceeding for under different sections of act, one action recovery, extent of 5 ""* persons liable for joint liability for 5C > r> corporations liable for •'' ^, • , liability of sureties on bond 566 complaint in action for 567 complaint need not negative exception as to clubs 567 indorsement on summons n •' , ' ' complaint should state names of persons sold to n 567 complaint framed under common law n 567 answer in action for ,,,s evidence, admissibility plaintiff need not prove no license 570 evidence, burden of proof 570 defenses 5 where violation induced or procured by officials 572 statute as to, violating injunction G32 PEPPERMINT ESSENCE. sold to be drank as beverage 30 PER CENT. of alcohol in liquor, evidence showing 674 PERMIT. for removal, application for 239 PERSON. injury to, civil damages 4 '" widow one within civil damage act n 4^r "PERSON AGGRIEVED." construed ,_ " mother is by sale to son 491 SOS INDEX. PERSONAL PROPERTY. section liquor tax certificate in New York is n 299 PERSONAL REPRESENTATIVE. of licensee no right to sell 292 no recovery by for death of intoxicated person 495 " PERSON OR PERSONS." includes corporations 235 PETITION. written petition for license required 242 for license, time of filing 243 for revocation of license 317 for revocation accompanied by affidavits n 317 to recover back unearned license fee n 331 what should be alleged 242 for injunction a civil proceeding 614 for injunction and statement, form and sufficiency of 625 PETITION FOR LICENSE. generally 24^ description and location of premises 244 by partners, names should be given 245 showing as to residence 245 showing as to citizenship 245 statements in as to application 245 false statements in 246 omissions in to answer 246 omission to state name of owner of premises in 247 amendment to 247 defective 247 signing of 248 may be combined n 248 signers cannot withdraw n 248 who are freeholders 249 when husband or wife not freeholder n 249 signing after filing n 249 burden of proof as to number of signers of n 249 freeholder must be bona fide 250 apartment given to person to qualify him as signer n 250 where owner paid for his consent n 256 PETITION FOR LOCAL OPTION ELECTION. generally 381 time of filing of 381 presumption as to 381 not in compliance with statute 381 " term " and "session " of count distinguished, time of filing n 381 INDEX. 809 PETITION FOR LOCAL OPTION ELECTION— Continued. BBOTIOK unnecessary words in 382 substantial compliance with Btatute sufficient sufficiency of 382 Betting out metes and bounds of territory in n 382 as to signers of petition generally 383 death of person signing n withdrawal of names from presumption as to signers, burden of proof 384 duty of officials as to determining sufficiency of signatures. . 385 PHARMACISTS. See Burden of Proof; Druggists; Evidence. Evidence. statutes as to sales by 124, 128 right to sell terminated by repeal of law 102 license laws as affecting 202 liable on bond though act done by clerk 356 record of as evidence 669 request to for liquor as evidence 669 burden of proof to show lawful sale 685 offence by, burden of proof 668 reports of sales by as evidence 669 PHYSICAL SUFFERING. of wife as element of damages 482 PHYSICIAN. indictment of, charging matters of defense 650 form of prescription to be given by 125 PHYSICIANS. license laws as affecting 202 burden of proof to show sale on prescription of 685 PLACE. of sale under license 293 wrong number of street given in bond 345 evidence as to 676 as used in statute requiring description of place to be searched construed 527 of offense, charging of generally 653 when specific averment of is necessary 654 PLEADING. See Indictment and Information; Search and Seizure Laws. complaint to recover money paid for license n 199 no formal pleadings on appeal from license board n 276 in actions on bonds 365 action against owner of premises, civil damages n 441 civil damages, notice not to sell n 445 810 INDEX. PLEADING — Continued. section sufficiency of, sale to intoxicated person n 454 complaint or declaration, civil damages 457 amendment of, civil damages n 457 civil damages, sufficiency of in particular cases n 457 misjoinder, civil damages n 457 action by wife, injury to means of support 477 in action by minors, civil damages n 493 action to recover penalty for sale to minor 556 complaint in action for penalty 567 answer in action for penalty 568 petition for injunction and statement 625 answer to petition for injunction and statement 626 See Complaint. PLEDGEE. of license as party to proceedings to rovoke 319 POLICE COMMISSIONER. consent of majority of required n 254 POLICE OFFICER. testimony of as to consents of druggist's register of sales. . . . 669 POLICE POWER. See Search and Seizure Laws; Taxation of Traffic; Taxes, statutes to regulate do not invalidate fourteenth amendment.. 45 motive and extent of generally 80 of state generally 80 regulation and control of liquor traffic 81 legislature may impose conditions deemed proper 82 bond may be required n 82 state may prohibit traffic 83 cannot prohibit possession of liquors 85 prohibition diminishing property value, no compensation. .86, 87 authorizing town and city agents to purchase and sell.. 96, 97, 98, 99 excluding liquor traffic from certain localities 100 consent of owners of dwelling houses 102 excluding traffic within certain distance of building or place 103, 104 as to premises and use of 105 as 1 o entrances to saloon 106 confining business to single room 107 prohibiting sales in hotels 108 forbidding obstructing view of interior of saloon.. 109, 110, 111 prohibiting sales to certain classes of persons 112, 113, 114 prohibiting employment of women 115 filing list of names of employees 116 closing of saloons on certain days 117, 118, 119 INDEX. 811 POLICE POWER — Continued. section designation of hours for dosing 120 as to drinking on premises where sold 121 legislation as to quantity 121 requiring seller to make returns or keep Btatemenl 122 committing sale to particular classes of persons as to sales by druggists 124, 125 requiring prescription for Liquor 125 requiring written application for liquor 128 as to inspection of liquors ! ; " as to adulteration of liquor 131 designation of cereals to be used in manufacture of malt liquor 132 as to furnishing public record of internal revenue receipt.... 133 requiring druggist to obtain license 228 search and seizure law, exercise of 198 POLITICAL SUBDIVISIONS. of state, judicial notice as to ~ I as to unlawful keeping from finding of liquor 549 POLLS. hours open, local option 399 POOR. appropriation of taxes and fees for 182 recovery of penalty for benefit of 561 " pop." as an intoxicating liquor n 3 " POP BEER." name not controlling 6 POPULATION. of cities as basis for taxation •• 175 proof of n 17: ' PORTER. defined an intoxicating liquor, judicial notice 32 statute as to advertising by means of PORT WINK. not a spirituous liquor 35 POSSESSION. of liquors cannot be prohibited 85 POSTING. of notices of local option election 391, 392, 393 812 INDEX. POWER OF ATTORNEY. SECTION to sign remonstrance 262 POWERS. See Municipal Corporations. PRACTICE. appeal from action of licensing board 276 PRECISE LOCATION. sufficiency of in application n 244 PRESCRIPTION. for liquor, statute may require 125 PREMISES. where liquor sold, regulations as to 105 as to number of entrances to 106 confining business to single room 107 ordinance as to access of officials to 171 description of in petition for license 244 building described in application not erected n 244 particular description of in application defined n 244 location of in notice of application for a license 251, 253 to be searched, variance between complaint and warrant.... 521 to be searched, allegations descriptive of 527, 528, 529 to be searched, power of officer as to 539 PRESIDENT TAFT. decision by as to meaning of whisky in Pure Food Act. . . . n 33 PRESUMPTION. money received by town liquor agent n 97 as to validity of ordinance 142 as to regularity of proceeding in levying tax 183 as to validity of ordinance imposing license tax n 214 that refusal of license was for legal reason n 268 as to license in action to recover for liquor sold n 295 as to petition for local option election 381 as to notices of local option election 393 as to preliminary steps from order declaring result of election 404 as to publication of result of election 411 as to knowledge of intoxication, civil damages n 454 as to sale, civil damages n 460 as to intent 680 as to keeping for unlawful sale 682 as to knowledge that person is intoxicated 684 PRIMA FACIE EVIDENCE. See Evidence; Presumptions. finding of liquor in possession of accused 672 INDEX. 813 PRIVILEGE. b» I Liquor traffic is 78 PROBABLE CAUSE. issuance of search warrant 519 allegations as to, probable cause PEOBATE JUDGE. testimony of as to issuance of license PROCEDURE. appeal from action of licensing board 276 PROCEEDINGS. for forfeiture of liquors 551 PROHIBIT, power of city to. See Municipal Corporations. city may license under power to 209 PROHIBITED CLASS. See the Particular Class. PROHIBITION. See Writ of Prohibition. statute, not ex post facto 46 statute, not unfair obligation of contract 46 statute as to, title of 61 statute as to taking effect at different times 62 statute, exceptions in 6s of traffic, state may enact laws for 83 law may apply to liquor manufactured before its passage...'. 83 no power in state to prohibit possession of liquors 85 by state, where property diminished in value 86, 87 of sales in brothels 108 of sales to certain classes of persons 112, 113, 114 powers of city as to 138, 157 need not be a total one n 138 of traffic in portion of city by ordinance 156, 157 b\- ordinance of traffic within certain distance of school or church 157 discretion of city as to municipal license fee should not be prohibitory 216 PROHIBITORY LAWS. See Police Power; Prohibition. PROOF. See Burden of Proof; Evidence. PROPERTY. diminished in value by prohibition 86, -7. B8 license not 187 liquor tax certificates in New York as 188 local option law not a taking of injury to, civil damages 47<> injury to, action by wife for 4M 8 14 INDEX. PROPERTY — Continued. section seizure of in connection with liquors 516 to be seized in connection with liquors, description of.... n 516 PROPERTY OWNER. where paid for his consent n 250 PROSECUTION. of town agent n 98 burden of proof to show offense 668 PROTEST. effect of averment in as to unfitness n 241 PROXIMATE CAUSE. civil damages, application of rule 429 intoxication must be, civil damages 429 where intoxicated person commits a crime and is imprisoned. 431 intoxicated person injured or killed as result of altercation, civil damages 432 question for jury, civil damage cases 433 sale must have contributed to or caused intoxication 434 PUBLICATION. additional names signed to petition n 250 of notice of application, necessity for 252 what are separate editions of paper n 252 of notice of application, sufficiency of 253 of notices for local option election 391, 392, 393 of result of local option election 40S, 409, 410, 411 PUBLIC RECORDS. See Records. of licenses as evidence 670 PUBLIC USE. search and seizure laws not a taking of property for 499 PUNISHMENT. ordinance providing for 148 PURCHASER. not protected by license of vendor n 298 intent of in going to saloon not material 680 changing name of indictment 643 PURCHASE PRICE. of liquor, tax assessed upon 176 no recovery for where sold before license issued 289 liquor sold to be retailed in local option district, recovery of n 376 INDEX. 815 PURE FOOD ACT. se< l meaning of whisky as used in, decision by President Taft.. n 33 Q. QUALIFICATIONS. for license, applicant must possess 240 of licensing' officials QUANTITY. in which Bales may be made 121 near beer, ordinance as to n 169 ordinance as to 169 where license specifies right is so limited 288 sale in prohibited quantity, revocation 310 necessary to produce intoxication, evidence as to n 674 QUESTION FOR JURY. whether cider a vinous or spirituous liquor 28 whether cider intoxicating 28 whether peach cider intoxicating 28 whether blackberry wine spirituous 35 w hether compounds intoxicat ing 41 proximate cause, civil damage cases 433 whether defendant caused or contributed to intoxication.... 435 whether sale caused or contributed to intoxication 435 whether wife contributed to injury of husband n 485 where liquors delivered to carrier n 508 effect of sale by defendant's servants n 681 to good faith of instructions to agent n 687 QUO WARRANTO. to test validity of license 267 K. RAILROADS. statute limiting right of to bring liquor into state signing of remonstrance by superintendent of REASONABLE. ordinances should be 142 REBATE. right to recover in New York 303 municipality may provide for revoking without rebate 304 forfeiture of, license to partners 314 effect of stipulation that revocation illegal n 330 on revocation, right to where no statute 330 right to, where statute 331 816 IXDJSK. REBATE — Continued. section sufficiency of petition to recover n 331 surrender of certificate, New York 332-336 procedure to obtain, New York 334 mandamus to obtain 335 right of assignee to rebate, New York 336 liquor tax certificate, rights of receiver 336 rights of licensee as affected by acts of employe 337 effect of surrender of certificate before discovery of violation. 338 paid by city, curative act constitutional n 304 RECEIPT. for license, mandamus to compel issuance of 273 for tax as evidence 669 RECEIVER. license for hotel in hands of 234 right to rebate, liquor tax certificate 336 liquors in custody of, seizure by officers, contempt 540 RECITALS. in bond 345 RECOMMENDATION. for license, signing of 248 RECORD. town agent required to keep n 98 what should show as to fitness of applicant n 241 as evidence of breach of bond 366 as to order for local option election 390 as to local option election 407 of assessor of taxes, when not admissible in evidence 669 of druggist as evidence 669 as evidence 669 showing granting of license, evidence 670 of United States revenue collector as evidence n 683 RE-ENACTMENT. of statute judicially construed 66 REFEREE. appointment of in proceedings to revoke 323 REFRIGERATOR. right to seize, search and seizure 516 REFUSAL. to issue license, effect of 230 REGISTER. to keep count of drinks, statute n 176 of sales of druggist as evidence 669 INDEX. 817 "REGISTERED VOTES." SEOTIOH " legal votes" synonymous with, local option petition 383 REG1 LATION. Bee Municipal Corporations; Municipal powera and regulations; Ordinances; Police Power; State; Statutes. of traffic, dispensary law '' town and city agent to purchase and sell 96, 97, 98, 99 excluding liquor traffic from certain localities l" 11 designating saloon Limits in cities and towns loi statute requiring consent of owners of dwelling houses 102 excluding traffic within certain distance of building or place 103, 104 as to premises and use of 105 as to entrances to saloons 106 confining business to single room 1 "~ sale in brothels 108 forbidding obstruction of view of interior of saloon. . 109, 110, 111 prohibiting sales to certain classes of persons 112 prohibiting sales to minors ' ' prohibiting sales to females 114 prohibiting employment of females 115 filing list of names of employees 116 closing of saloon on certain days H? closing of saloons on Sunday 118 closing of hotels on Sundays 119 designation of hours for keeping closed 120 legislation as to quantity 121 requiring seller to make returns or keep statement 122, 127 committing sale to particular classes of persons as to sales by druggists 12 I requiring written application or request 128 as to sales by social clubs 129 inspection of liquors 130 adulteration of liquors 131 designation of cereals to be used in manufacture of malt liq- uors 132 as to furnishing public record of internal revenue receipt. ... power to regulate confers no power to prohibit 139 purpose of license is as to license, power of city 210 RELIGIOUS INSTITUTION. excluding traffic within distance of 103, 104 REMONSTRANCE. effect of averment in as to unfitness n 241 should be filed in accordance with provisions of statute 260 court cannot on appeal allow new remonstrance filed 260 when relates to second applical ion 260 generally 2 ^0 818 INDEX. REMONSTRANCE— Cont inued. section who may remonstrate 261 where statute does not prescribe qualifications of remon- strants 261 mode of determining - majority of voters n 261 owner of land defined n 261 signing- of 262 persons may remonstrate through attorney 262 error by attorney in signing name to n 262 right to withdraw from 263 form and sufficiency of 264 on ground of immorality 264 amendment to 264 to be verified by affidavit 264 surplusage in 264 several copies construed as one 264 specification of causes in 264 mandamus to compel action on 265 attendance of witnesses on hearing may be compelled 265 proceeding on a judicial one 265 appeal 265 rules as to evidence on hearing of 265 fixing time for hearing of 265 procedure and hearing of 265 no appeal from order overruling n 275 statute as to granting of license within certain time after. . . . 278 REMONSTRANTS. See Remonstrance. REMOVAL PERMITS. application for 239 REMOVAL. of license, right to 226 of license, inability to obtain 229 REPEAL. repealing laws construed 71 by implication 72 act requiring record by druggist n 127 of ordinances, or mnnieipal powers by general law 150 of general law by act conferring power on city 151 of ordinance by later one 154 of license laws 191, 192^ 193 power to city to license not a repeal of general law 208 of municipal powers to license 225 of license law as revoking license 307 of law subsequent to execution of bond 341 by implication not favored, local option 372" of prior laws, local option law as 374 of civil damage act, effect of 426. INDEX. 819 REPEALING LAWS. section construction of 71 REPLEVIN. to recover liquors seized 544 for liquors seized, power of officer to consent to judgment. . n 544 REPORTS. of sales by druggists 127 by druggist, sufficiency of n 127 of names of liquor sellers, ordinance as te n 210 penalty for failure of druggist to make 557 by druggist as evidence 669 RESIDENCE. sections of city, exclusion of traffic from 156 and business sections, ordinance not defining boundaries of. n 156 words " residence " portion in statute construed n 156 as prerequisite to, right to license 201 section, statute conferring power on city as to 221 when petition for license should show 245 RESIDENCE PORTION. in statute construed n 156 RESTAURANTS. right to refuse license to sell in n 234 RESTRAIN. See Regulations. power to confers no power to prohibit 139 city may license under power to 209 RESUBMISSION. of question of local option 415, 416 RETAILERS. taxation of 178 RETROACTIVE EFFECT. license has none 289 RETURN. of sales by seller may be required 122 of sales by druggists 127 of local option election . 403 of officer, search and seizure 543 penalty for failure of druggist to make 557 RETURN DAY. proceeding to revoke, extension of n 320 820 INDEX. REVENUE. section purpose of license not for 185 REVENUE COLLECTOR. copy of record of as evidence n 683 return made to as evidence n 683 REVENUE TAX. books showing 1 payment of, evidence 669 REVOCATION. of license, power of city as to imposing- conditions as to.... 220 obligation of contract not impaired by statute as to n 303 statute as to construed n 303 right to revoke generally 303 municipality not liable in tort for mistaken action as to.... 304 power of municipality as to 304 mandamus to review action of city council as to 304 where statute specifies causes 305 effect of expiration of license 306 by repeal of license law 307 where license contains provisions as to forfeiture 308 conducting business at another place 309 failure to display certificate 309 gambling on premises 309 conducting place in disorderly manner 309 grounds of generally 309 unlawful sales 310 sale unlawful, no defense made in good faith 310 statements in application strictly construed against applicant. 311 false statements in application 311 statement as to continuous occupation, suspension by fire or accident 312 conviction for felony under New York law 313 word " conviction " construed 313 violation of lav/, conviction for 313 to partners, violation of law 314 sufficiency of service of order to show cause n 314 issued to club organized to evade law 315 to hotels 316 petition for 317 answer in proceedings for 318 parties to proceedings 319 who may intervene 320 when court may order discontinuance n 320 stipulation by parties as to use of premises n 320 extension of return day if order to show cause n 320 proceedings for 321 where licensee's attorney absent '. n 321 waiver of proper notice of proceedings 322 INDEX. g2] REVOCATION— Continued. sect eos necessity of notice of proceedings 322 appointment of referee exercising power as t<> mandamus :;:.'! disqualification of member of board n 324 evidence in proceedings for 325 Btaying proceedings no right to trial by jury 327 costs of proceedings reviewing, action, certiorari 329 right to rebate, no statute 330 right to rebate, where statute 331 right of licensee as affected by acts of employe 337 effect of surrender before discovery of violation 338 RIGHT TO SELL LIQUOR. not inherent 77 nature of 7 s constitutional provisions affecting 79 RIGHTS UNDER LICENSE. as affected by terms of 288 must sell in class issued for 288 to sell in certain quantities 288 to sell for medicinal, chemical and mechanical purposes 288 separate license for distilling and selling n 288 no recovery for liquors sold before issued 289 takes effect from date of issuance 289 when license takes effect 289 does not operate retrospectively 289 duty to obey laws, as to employes 290 licensee may sell by agent 291 licensee can not violate by means of agent 291 personal representative of licensee no rights to sell 292 license to sell within a county part of which prohibitory law in force 293 can only sell at place specified 293 as to place of sale 293 removal of licensee to another county 29 '■'• as to sending out agent a 293 to distiller D 293 when- board prescribes unauthorized hours 294 to firm 295 to member of firm 2'.».""> to otlicer of corporation 296 duration of license 297 term " each calendar year " construed 297 license not assignable 298 vote for transfer of license void 298 license not subject of chattel mortgage n 29S $22 INDEX. RIGHTS UNDER LICENSE— Continued. SECTION transfer of liquor tax certificate in New York 299 transfer of license in Pennsylvania 300 license as subject of levy sale 301 as to stocks and fixtures 302 on termination of license " 302 of licensee as affected by acts of employee, revocation, rebate. . . . 337 ROOM. statute confining business to single room 107 description of in application n 244 s. SALES by clubs. See Clubs; Social Clubs. in original packages, laws as to prior to Wilson Act 51 making returns or keeping statement of 122 returns of by druggists 127 unlawful, revocation for 310 reports of by druggist as evidence 669 SALES BY SOCIAL CLUBS. See Social Clubs. SALOON. defined 15 statute as to devices for amusement or music in saloons 66 statutes as to entrances to 106 closing of on certain days 117, 118, 119 designation of hours for closing 120 ordinance as to closing of by force 146 as used in statute construed 146 SALOON LIMITS. designation of in cities and towns 101 SAME STREET. as used in statute construed n 194 SATISFACTION. where defendants jointly liable, civil damages 440 SCHOOL DISTRICTS. appropriation of taxes and fees to 182 SCHOOL FUND. recovery of penalty for benefit of 561 SCHOOLHOUSE. as used in license laws construed 259 tNDEX. vj;; SCHOOLS. ordinance prohibiting traffic within certain distance of 157 excluding traffic within certain distance of l"l SCREENS. use of may be prohibited 1"", 1 10, 1 1 1 ordinances as to 159, 160 in places where near beer sold, ordinance n 159 SEAL. want of on bond no defense n 307 SEARCH. See Search and Seizure Laws. SEARCH AND SEIZURE LAWS. generally 408 constitutionality of, generally 498 not class or special legislation 498 exercise of police power 498 when not ex post facto 498 ordinance as to, held invalid n 498 nol a taking of private property for public use 499 not invalid as denying right of trial by jury 500 nature of proceeding for forfeiture, proceedings in rem 500, 545 whether proceedings for forfeiture civil or criminal 500. ."> W> statutes as to, generally 501 statute as to destruction of liquors, held unconstitutional r> < »i2 statute as to appeal 502 st atute as to bond 502 particular statutes construed 502 statute not limiting authority of officers held unconstitutional 502 as to unreasonable searches and seizures 503 limitations on legislative power 503, 504 constitutional provision as to warrant, statute construed .">") liquor which may be seized, generally 505 liquor to be transported to Federal territory in state 505 liquor in hands of municipal otficers 505 liquor in hands of bailee 500 seizure of property used in transporting liquor 507 seizure of liquors in transitu 507 seizure of liquor in hands of carrier 508 liquors shipped into prohibited district 508 liquors shipped into prohibited territory, contract of sale completed there 509 liquors shipped from another state, [owa 510 liquor shipped from another stale, Maine ."■11 liquor shipped from another state. South Carolina 512 liquor shipped from another state. Vermont 513 sworn complaint ,">1^ time warrant remains in force 519 324 INDEX. SEARCH AND SEIZURE LAWS— Continued. section: warrant generally 519 warrant supported by oath of complainant 519 issuance of warrant, probable cause 519 warrant should describe only one place n 519 warrant valid when issued, subsequent omission in proceedings. . n 519 wlien justice entitled to fees n 519 misrecital in warrant as to who issued by n 519 recital in warrant controlling jurat n 519 liquor shipped from another state, United States 514 liquor shipped from another state, conclusion 515 vessels containing liquors 516 refrigerator 516 seizure of property in connection with liquors 516 beer faucet 516 description of property to be seized in connection with liquors. . n 516 complaint, generally 517 " house " not equivalent of " dwelling house " n 517 defacement of complaint n 517 complaint not supported by verdict n 517 duty of judge to issue warrant n 519 warrant of arrest and search warrant in one instrument 520 warrant and complaint in one instrument 526 surplusage in warrant 521 variance between complaint and warrant 521 who may complain 522 alleging probable cause 523 allegations, as to liquors, kinds 524 allegations as to mixed liquors n 524 allegation as to intent, keeping for unlawful sale 525 allegations as to owner or keeper 526 constitutional provisions requiring description of place construed.. 527 " place " as used in statute requiring description construed 527 description of place to be searched 527, 528, 529 description of place in warrant should be as certain as in deed. . n 527 sufficiency of particular descriptions of place to be searched 529 making search in night time 536 time of service of warrant 536 search and seizure without warrant, generally 531 seizure without warrant, allegations in complaint and warrant. . . . 532 as to arrest of person having liquors in possession 533 arrest without warrant 534 effect of seizure of more liquors than authorized 535 notice of seizure 53(5 claimants, effect of appearance, waiver of defects 537 appearance not waiver of jurisdictional defects in process 537 power and liability of officer serving process, generally.. 538, 539, 546 as to fees of officers n 538 service of warrant by officer not directed to n 538 power of officer as to place of search 539 1NDKX. 825 SEARCH AND SEIZURE LAWS— Continued. section unauthorized seizure by officer, liability 540 seizure by officer of liquors in custody of receiver, contempt 540 duty of officer as to keeping of liquors 541 acts of oilicer de facto 542 officer's return >43 actions to recover liquors seized, replevin 544 liquor seized is in custodia legis 5 1 1 power of officer to consent to judgment in replevin n 544 statute declaring proceedings to be in rem n 545 value of liquors as affecting jurisdiction n 546 proceedings for forfeiture and punishment of offender are separate. 547 no defense that intent was thai of agent of owner, forfeiture 548 finding as presumptive evidence of unlawful keeping, statutes 549 evidence generally 550 evidence of sales as showing intent to unlawfully sell 550 liquors seized as evidence " necessity of proof, as to place of seizure 550 evidence necessary for condemnation of liquors > >1 proceedings for forfeiture, judgment for 551 statute as to " forthwith " proceeding to prosecute for forfeiture n 55 1 making claim for liquors seized " 551 claimant of liquors bound by written claim n 551 right to return of liquors seized 552 liquors seized as evidence of unlawful keeping 682 SEATS. ordinance as to n 1"*1 SEIZURE. See Search and Seizure Laws. SERVANT. licensee may sell by 291 of defendant, question for jury as to effect of sale by a 681 evidence as to violation of instructions by 687 evidence as to sale by may be sufficient SERVICE. of notice not to sell, civil damages 445 of notice not to sell, allegation of " 445 of warrant, time of, search and seizure laws 530 of notice of seizure, waiver of defects in 536 of warrant by officer not directed to, search and seizure a 538 SHERIFF. right to levy on license 301 of petition for license cannot withdraw n 248 SIGNERS. to petition for license 248 after filing of petition n 249 §26 INDEX. SIGNERS — Continued. SECTION of petition, burden of proof as to requisite number of n 249 of petition given apartment to qualify him as signer n 250 of petition paid for his consent n 250 of consents, sufficiency 255 of remonstrances 261, 2G2 of remonstrance, right to withdraw 2G3 of remonstrance, burden of proof to show are freeholders 266 petition for local option election 383, 384, 385 of petition local option election, withdrawal n 383 SIGNING. of petition for license 248 of bond, sufficiency of n 367 SINGLE STAMP SPIRITS. term construed n 177 SMALL BEER. intoxicating 20 SOCIAL CLUBS. statute as to sales by 129 ordinance as to invalid 138 license to, power of city n 206 statute allowing distribution on payment of tax n 226 organized to evade law, revocation license to 315 complaint for penalty need not negative exception as to 567 sales by generally 573 sales by, Alabama 574 sales by, California 575 sales by, Colorado 576 sales by, District of Columbia 577 sales by, Georgia 578 sales by, Illinois 579 sales by, Indiana 580 sales by, Iowa 581 sales by, Kansas 582 sales by, Kentucky 583 sales by, Louisiana 584 sales by, Maine 585 sales by, Maryland 586 sales by, Massachusetts 587 sa lea by. Michigan 588 sales by, Minnesota 589 sales by, Mississippi 590 sales by. Missouri 591 sales by, Montana 592 sales by, Nebraska 593 sales by, New Jersey 594 sales by, New York 595 [NDEX. 827 SOCIAL CLUBS— Continued. section sales l>y, North Carolina 596 sales by, Oregon ">'■'< sales by, Pennsylvania sales by, South Carolina 599 sales by, Tennessee 600 sales by, Texas 601 sales by, Virginia 602 sales by, Washington 603 sales by, Wesl Virginia 66 ' sales by, United States 61 '•"' sales by, England (i,,r ' sales by, conclusion 60' as a nuisance, abatement 616 SOLDIERS' HOME. excluding t raffic within certain distance of 103 SOLICITING ORDERS. st atutes as to 59 SPECIAL LAWS. generally 62 local option law not 3< prohibit ing sale in certain county 100 statute as to taxes not 1 i '■> SPELLING. errors in, indictments 639 SPIRITOUS. for spirituous in indictment 030 SPIRITUAL. for spirituous in indictment. 03!) SPIRITUOUS LIQUORS. defined and considered > ■ 8 do not include malt or fermented liquors where statute enumerates certain liquors as 9, 10 alcohol as 1 ■ ale not I s does not include lager beer '- t brandy is. judicial notice 26 cider not 28 whisky as 33 whether blackberry wine is. question for jury 35 wine as •'•' port wine not 3.) gum camphor and alcohol mixed not n 40 Jamaica ginger as 41 evidence sustaining allegation of sale of 675 £28 INDEX. STALLS. section ordinances as to 160 STAMPS. internal revenue stamps on beer kegs as evidence 675 STATE. See Constitutionality; License; Police Power; Prohibition; Regulation; Statutes; United States Constitutional Pro- visions Affecting Laws. power of as affected by United States constitution 43-60 Fourteenth Amendment as affecting power of 44, 45 may prohibit, not ex post facto law 46 may prohibit, not impair obligation of contract 46 may require license fee, not a taking of property without due process of law 47 particular acts construed with reference to federal constitution .... 47 power of as affected by United States Constitution, commerce. . 48, 49 cannot regulate interstate commerce without consent of Congress . . 48 power of as to commerce, rules stated in Vance v. Vandercook. 49 power of as to interstate shipments 50 power of as to sales in original packages prior to Wilson Act. ... 51 power to forbid keeping of liquor for sale, interstate commerce.. 52 cannot forbid shipment into state 53 effect of Wilson Act on powers of 54, 55, 57 cannot prohibit citizen from ordering and receiving liquor from another state '. 55, 56 power to regulate traffic 76-99 control of generally, police power 80 may regulate and control sale of liquor 81 may impose conditions deemed proper 82 may prohibit traffic 83 may prohibit traffic, generally 83 cannot prohibit having liquor in one's possession 85 power of to engage in liquor traffic 88 power to authorize dispensaries 90-95 may authorize town or city agents to purchase and sell 96, 97, 9S, 99 may exclude traffic from certain localities 101 may designate saloon limits in cities and towns 101 may require consent of owners of dwelling houses 102 may regulate sale for medical purposes in local option districts. . n 125 may delegate power to municipal corporations 134 burden of proof on to establish offense 668 STATE AGENT. sales by for cash n 98 " STATE LAW." construed 313 STATEMENT. showing sales, keeping of may be required 122 INDEX. 829 STATEMENT— Continued. SECTION of sales by druggists 127 of consent, Iowa 380 STATUTES. See Bonds; Civil Damage Acts; injunction and Abate- ment; License; Local option Laws; Penalties; Search and Sci/ure Laws; Taxes. conferring power on municipal corporations. See Municipal Corporations. making all malt liquors intoxicating Hi declaring fermented drinks intoxicating 1<» naming certain liquors as iiitoxient ing (I. 10 enumerating certain liquors as spirituous !>. in declaring lager beer to be intoxicating 2", declaring cider intoxicating 30 including wine as an intoxicating liquor 3G fourteenth amendment as affecting 44 prohibiting not an ex post facto law 46 prohibiting docs not impair obligation of contracts 4''> as affected by United States Constitution, particular statutes.... 47 affecting commerce, generally 4s. 49 discriminating by tax against products of other states .".1 affecting sales in original packages, prior to Wilson Act 51 forbidding keeping of liquors for purpose of sale in another state. . 52 forbidding shipments into state 53 prohibiting right to order, application to state official 56 forbidding transportation within state construed 57 as to place of delivery and sale 58 as to soliciting of orders f>!> as to advertising 60 constitutional provisions as to title and subject matter of act construed 61 local or special laws generally 62 taking effect at different dates t'rj regulating sale in particular locality not local law t;-2 to be general and uniform, an operation 63 making distinction between distillery or brewery and saloon as to intoxicating liquors, construction of generally I rule as to construction of generally 65 intent, of legislature to be considered in construing 66 as to devices for amusement or music in saloons word " town " in construed G(i judicially construed, re-enacted 66 where part of act invalid t',7 as to except ions in, rule of cons) met ion GS affixing penall ies si rid ly const rued !','.> construction of amendments to 7o repealing laws generally 71 repeal by implication 72 830 ^EX- STATUTES— Continued. SECTION general law as repeal of a local law 72 denouncing two separate offenses 73 judicial notice of political subdivisions in construing 74 one not affected by law can not question validity 75 prohibiting traffic constitutional 83 prohibiting possession of liquors 85 reluctance of courts to interfere with n 82 creating dispensaries construed 90-95 authorizing town and city agents to purchase and sell. 96, 97, 98, 99 requiring town agent to keep record n 98 excluding traffic from certain localities 100 designating saloon limits in cities and towns 101 requiring consent of owners of dwelling houses 102 excluding traffic within certain distance of building or place. . 103, 104 as to premises and use of 105 confining liquor dealer to one place of business constitutional n 105 as to entrances to saloons 106 confining business to single room 107 prohibiting sales in brothels 108 forbidding obstructing view of interior of saloon 109, 110, 111 prohibiting sales to certain classes of persons 112 prohibiting sales to women 114 prohibiting employment of women 115 filing list of names of employees 116 as to closing saloons on certain days 117, 118, 119 word " closed " in construed n 118 designating hour of closing 120 as to quantity in which liquors may be sold 121 as to drinking on premises where sold 121 requiring seller to make returns or keep statement 122 committing sale to particular classes of persons 123 placing druggists on same footing with others n 124 as to sales by druggists 124-128 requiring prescription for liquor 125 requiring written application for liquor 128 as to sales by social clubs 129 as to inspection of liquors 130 to prevent adulteration of liquor 131 designating cereals to be used in manufacture of malt liquor 132 as to furnishing public record of internal revenue receipt 133 conferring power on municipal corporations 133, 134, 135 repealing ordinances and municipal powers 150 ordinance incorporating provisions of n 144 word " saloon " in construed 146 act conferring power on city as repealing general law 151 construing statutes and ordinances together 152 and ordinance making same act an offense 153 words " residence portion " in construed n 156 general rule as to charging offense in language of 662 INDEX. 831 STATUTES— Continued. section as to finding of liquor being presumptive evidence 549 rule as to charging exceptions in 663 a]. plication of rule as to charging exceptions in 664 as to finding liquor in possession of accused, evidence 672 making United States license prima facie evidence C83 STAY. of proceedings to revoke 326 STEAMER. license to sell on n 218 STIPULATION. by parties as to use of premises, revocation proceedings n 320 that revocation illegal, suit to recover fee n 320 STOCK. rights of licensee as to 302 STRONG BEER. " strong or spirituous liquors " includes 18 an intoxicating liquor 20 " STRONG OR SPIRITUOUS LIQUORS." ale and strong beer included in 18 STORAGE. cf liquors, license required for place used for 22s liquors kept in as evidence 682 SUICIDE. recovery for under civil damage act 429 SUMMONS. indorsement on, action for penalty 567 SUNDAY. sales on prohibited, construction of statute as to, repeal 72 statute as to keeping open and selling construed 73 closing of saloons on 118 closing of hotels on 11^. 11!' ordinance requiring closing on 164 ordinance as to Sunday closing of places where Bold n l»i4 revocation license to hotel for sale on 316 sales on as breach of bond :! ~> : > sales on, nature of action to recover penalty for 558 sales on, indictment . charging of 659 evidence as to sales on 678 832 INDEX. SUNDAY —Continued. section evidence where indictment names a date not falling on 678 keeping open on, evidence in defense 679 evidence as to keeping open on 679 evidence showing intent to sell on 680 SUPERINTENDENT. of railroad company as signer of remonstrance 262 SUPERSEDES. does not suspend order of prohibition n 100 SURETIES. liability not extended beyond terms of bond 340 liability on bond generally 340 liability terminated by dissolution of firm n 340 on bond, who may be 347 no liability on bond where license void from inception 357 not liable after surrender of license or certificate 358 as to release of 362 may recover from without first exhausting property of principal.. 363 cannot set up their neglect as a defense 367 want of seal no defense n 367 on bond, liability for penalty 536 SURPLUSAGE. in title of ordinance 143 in remonstrance 264 misrecital in bond 345 in search warrant 521 in indictment does not vitiate 648 SURRENDER. See Rebate. right to rebate, New York 332-336 procedure to obtain rebate, New York 334 of liquor certificate, surety on bond not liable for act after 358 SWEET CIDER. used to distinguish from hard cider 28 T. TAVERN. defined n 15 license for 234 as used in statute construed n 2.'! 4 license for not assignable n 2 revocation license to 31 G INDEX. 833 TAXES. section discriminating against products of other states 51 imposing of by ordinance under general welfare clause It'. not levied on basis of business done, uniform 173 payment of in advance 173 statutes as to constitutional 173 taxation of traffic generally L73 on a business of a specific annual sum n 17:; listing persons for assessment of n 17 I order of county authorities as to construed n 17:; injunction against enforcement of law n 17: adoption local option exempts n 173 statute may impose lax and provide for its collection n 173 property not to be twice taxed for same privilege n 173 may levy though traffic prohibited 174 where constitution forbids legislature to authorize grant of license 174 levying of not a license n 174 population of cities and towns as basis 175 classification by legislature 171 classification for must be reasonable 17", assessed on purchase price of liquor 176 based on amount of business 176 register or bell punch to keep count of drinks n 176 classification based on different kinds of liquors 177 classification of wholesalers, retailers and manufacturers.... 178 law need not define wholesale dealer n 178 on wholesalers in malt liquors n 178 liability of brewer for more than one tax n 178 statute void in part 179 discrimination against liquors manufactured in other states.. 179 whether lien junior to mortgage 1 80 making tax a lien 180 disposal of taxes and license fees dependent on statutes.. 181. 182 appropriation of for poor or other purposes L82 regidarity of proceeding in levying, presumption 18 I license a franchise subject to be taxed 186 licensee fee not 189 licensee fee not a tax 18 upon licenses n -tit ordinance imposing construed n power to city as to must be clearly given 209 under power to tax city may license 209 when city may impose occupation tax 210 power of city as to generally 214 by city graduated on amount of sales 214 ordinance as to, presumption as to validity n 214 license fee imposed by city not n 214 where charter of town authorizes it to collect n 226 g34 INDEX. TAXES — Continued. section penalties not n 554 receipt for as evidence 669 records of assessor of as evidence 669 books showing payment of internal revenue tax, evidence.... 669 TEMPOEARILY. ordinance requiring saloons to be so closed 165 TEMPORARY INJUNCTION. See Injunction and Abatement. TENANT. See Injunction and Abatement. TENDER. of fee not sufficient n 227 TERMS. See Definitions and Terms. TESTIMONY. See Evidence. THREATS. as an element of wife's damages 482 TIME. of filing petition for license 243 of granting license, power of board as to 278 of holding local option election 395, 396 of service of warrant, search and seizure laws 530 of offense, charging of, indictment 656 charging of in indictment, precise time not essential 658 charging offense with a continuando 658 of offense, charging of, sale on Sundays 650 of offense, charging sales on Sunday 660 of offense, evidence as to, general rule 677 of offense, evidence as to exact, necessity of 677 TINCTURE OF GENTIAN. not within statute 37 TINCTURE OF GINGER. not within statute n 37 TIPPLING HOUSE. defined 16 TITLE. of ordinance, surplusage 143 of act constitutional provision as to construed 61 TONICS. when intoxicating n 38 whether intoxication, evidence of effect of n 674 INDEX. 835 " TOWN." SECTION as used in statute construed 86 population of as basis for taxation 175 recovery of penalty by • r '" , ' J TOWN AGENTS. authorized to purchase and sell liquors %, 07, 9£ certificate of, notice n 98 sale by to minor '» required to keep record n application to for liquor " Liability of in damages n 98 TRANSCRIPT. of evidence on appeal from license board n 276 TRANSFER. of hotel license, statements in application for n 246 of license, authorized by statute n 293 of license, none can be made 278 of liquor tax certificate in New York 299 of license, right to revoke n 299 of license in Pennsylvania 300 of license by insolvent, order for n 300 of license, what petition should contain n 300 of license where right to forfeited n 300 must be in accordance with statute n 300 appeal from order for n 300 TRANSFER AGENT. testimony of as to delivery of liquors 671 u. r XI FORM. in operation, statutes should be 63 ordinances should be 141 UNITED STATES. license from confers no right to violate state laws B : evidence of payment of, injunction 627 license as evidence UNITED STATES CONSTITUTIONAL PROVISIONS AFFECTING LAWS i fourteenth amendment as affecting power of states 44 fourteenth amendment does not prevent state legislation as to liquor traffic 4."» statute not impairing obligation of contracts 46 836 INDEX. UNITED STATES CONSTITUTIONAL PROVISIONS— Continued section statute prohibiting not repugnant to United States Constitu- tion 46 statute not ex post facto 46 deprivation of life, liberty or property without due process of law construed 47 as affecting particular statutes 47 do not prevent state requiring license fee 47 power of state as affected by, commerce 48, 49 power of state as to interstate shipments generally 50 sales in original packages, prior to Wilson Act 51 statute forbidding keeping of liquors for purpose of sale in another state 52 statute forbidding shipments into state 53 Wilson Act, effect and construction of 54, 55, 57 statute limiting right to order, application to state official.. 56 statute as to soliciting orders for liquor 59 screen law not violation Fourteenth Amendment 109 prohibiting sales to certain classes of persons 112 UNLAWFUL SALES. revocation for 310 " UPON ARRIVAL." as used in Wilson Act construed 57 V. VALIDITY OF ORDINANCE. See Ordinances. of statute. See Constitutionality of Law. of statute can not be questioned by one not affected 75 VALUE. of property, diminished by prohibition 86, 87, 88 of liquors as affecting jurisdiction, search and seizure n 546 VARIANCE. between complaint and warrant, search and seizure 521 VEHICLE. used in carrying liquor, seizure of 507 VESSELS. in which liquor kept, seizure of 516 VESTED RIGHT. none in license 187 VIEW. of interior of saloon, statute forbidding obstruction of.. 109, 110, 111 index. v::7 VINOUS LIQUOR. section 28 cider not denned 13 36 wine is VINOUS SPIRITS. 1 7 alcohol not VIOLATIONS. See Offenses. of Injunction decree, See Contempt; Injunction and Abatement, evidence showing. See Burden of Proof; Circumstantial Evi- dence; Evidence. of law not excused by license from United States 84 sales by town agent n 9 ° as to premises and use of 105, 106, 101 as to entrances 10 ' of statute confining business to single room 107 obstructing view of interior of saloon HI of Sunday closing law 1 of local option law 376 VIOLATIONS OF LAW. See Burden of Proof; Evidence; Indict- ments; Offenses; Statutes. See the particular violation Statutes. refusal of license for 284 > 28a conviction for, revocation 313 revocation of license to partners 314 condition of bond against 349 VOLUNTARY PAYMENT. of license fee, right to recover 199. 200 VOTE. on local option. See Local Option Laws. VOTERS. as remonstrants 261, 262 mode of determining majority of n 261 signers of local option election petition ' x ; at local option election 400 w. WAGON. used in carrying liquor, seizure of 507 WAIVER. of objection to defects in service of notice of seizure 536 not of jurisdictional defects by appearance, search and seizure. 537 of defects in notice of seizure by appearance 537 of right as to civil action for penalty 562 838 INDEX. WAREHOUSEMAN. section liquor in hands of, search and seizure 506 WARRANT. See Search and Seizure Laws. search and seizure, when not contempt to resist 518 search and seizure, how long in force 519 generally, search and seizure 519 search and seizure, oath of complainant 519 search and seizure, issuance of, probable cause 519 search and seizure, should describe only one place n 519 search and seizure, valid when issued, subsequent omission in proceedings n 519 search and seizure, duty of judge to issue n 519 search and seizure, misrecital in as to who issued by n 519 jurat controlled by recital in, search and seizure n 519 and complaint in one instrument, search and seizure 520 of arrest and search warrant in one instrument 520 surplusage in, search and seizure 521 and complaint, variance between, search and seizure 521 allegations as to probable cause, search and seizure 523 search and seizure, allegations as to liquors 524 description in of place to be searched 527, 528, 529 search and seizure, description of place in should be as certain as in deed n 527 time of service of, search and seizure laws 530 search and seizure without, generally 531 seizure without, allegations in complaint and warrant 532 waiver of defects in return of officer upon 537 arrest without, search and seizure 534 search and seizure, service of by officer not directed to.... n 538 as justifying officer, search and seizure 538 WHISKY. as a spirituous liquor 33 defined 33 meaning of as used in Pure Food Act, decision by President Taft n 33 as an intoxicating liquor 34 WHISKY COCKTAIL. an intoxicating drink 34 WHITE MALE INHABITANT. restricting issuance of license to 201 WHOLESALERS. ordinance prohibiting in certain sections n 15fl taxation of 17s manufacturer not n 178 brewer subject to tax as n 178 law as to tax need not define n 178 INDEX. 839 WHOLESALERS— Continued. section in lager beer n 178 in malt liquors, special tax on n 178 WIDOW. is a " person aggrieved " 423 action by, death of husband 487, 488 a " person " within civil damage act n 4S7 action by, husband killed by intoxicated person 489 WIFE. of applicant not a qualified petitioner 249 when not a freeholder n 249 is a " person aggrieved " 423 thrown from carriage, civil damages 428 recovery under civil damage act, intoxication of husband, nature of right n 454 action by, civil damages, sufficiency of declaration n 457 action by for injury to means of support 473 must show lawful marriage, civil damages n 474 injury to means of support, income of or ability to labor im- material 475 action by for injury to means of support, effect of divorce. .. 476 action by, pleading, injury to means of support 477 action by, injury to means of support, evidence of earnings and financial condition 478 action by, injury to means of support, evidence as to prior conduct 479 action by, evidence as to age and number of children 480 action by, physical suffering 4^ 2 action by, assault by husband 483 action by for injury to property 484 action by, consent or acquiescence of 485, 486 action by, exemplary damages 490 WILSON ACT. laws affecting sales in original packages prior to 51 valid 54 effect and construction of 54 does not prevent right to order and receive 55, 56 words " upon arrival " construed 57 WINE. as a spirituous liquor 35 defined and considered 35, 36 as an intoxicating liquor, statutes 36 whether intoxicating, judicial notice 36 WINE GROWERS. statutes permitting to sell without license 17^ S40 INDEX. WITNESS. See Evidence. section as to fitness of applicant n 240 in proceedings to revoke, swearing of 321 WOMEN. See Females. prohibiting sales to 114 prohibiting employment of 115 prohibitions as to 162 ordinance prohibiting employment of 163 ordinance making fee higher in places where employed 214 licenses to 238 WRITING. license required to be in 231 WEIT OF PROHIBITION. none to restrain void grant n 268 none to compel granting of license n 271 WRITTEN APPLICATION. for liquor may be required 128 Y. YEAR. in license laws refers to calendar year n 297 RARY TTNIV OF CALIFORNIA U "' LOS ANGELES SOUTHERN REGIONAL LIBRARY FACILITY See Spine for Barcode Number