City of Deadwood v. Allen

• Decision Date: 17 June 1896
• Citation: 8 S.D. 618,67 N.W. 835
• Parties: CITY OF DEADWOOD, Plaintiff and appellant, v. JAMES W. ALLEN, Defendant and respondent.
• Court: South Dakota Supreme Court

8 S.D. 618

67 N.W. 835

CITY OF DEADWOOD, Plaintiff and appellant,

v.

JAMES W. ALLEN, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Lawrence County, SD Hon. A. J. Plowman, Judge Reversed John R. Wilson, Deadwood, SD Attorneys for appellant. Robert N. Ogden Attorney for respondent. Opinion filed June 17, 1896

FULLER, J.

Upon a complaint duly verified the defendant was charged and tried in police court for the violation of the following ordinance of the city of Deadwood:

“Every person or firm who keeps for sale at retail, in the city of Deadwood, cigars, cigarettes, tobacco, soda water, mineral waters and other light drinks of various kinds, to be drank upon the premises, the manufacture and sale of which is not prohibited by the laws of this state, shall pay a license of three hundred dollars per annum, which shall be payable monthly in advance. … Any person who shall violate any of the provisions of this chapter, shall, upon conviction thereof, pay a fine of not less than ten dollars nor more than one hundred, and each and every day that such person, or persons, shall neglect or refuse to comply with the provisions of this chapter, shall be a violation and offense, for which, upon conviction, he shall be subject to a like penalty.”

The trial terminated in a conviction as charged in the complaint, and the justice entered judgment for $36.70, including a fine of $25 and $11.70 taxable costs, and it was therein ordered and adjudged “that the defendant stand committed until such judgment be complied with, not to exceed one day for each one dollar and twenty-five cents of such fine and costs assessed against him.” Upon a mere exception to the entry of judgment an appeal was taken by the defendant to the circuit court upon questions of law alone, resulting in a reversal of said judgment, and the plaintiff appeals to this court.

Omitting formal averments, the complaint is as follows:

“That James W. Allen, on the 1st day of December, 1894, and on divers and sundry other days during said month of December, 1894, within the city of Deadwood, county and state aforesaid, then and there being, did then and there keep for sale at retail cigars, cigarettes and soda water, and other like drinks of various kinds, to be sold to the general public, and to be drank upon the premises, without having first obtained a license therefor, as required by law, contrary to the form, force and effect of the ordinance of the city of Deadwood in such case made and provided.”

The city of Deadwood is incorporated under Chap. 37, Laws 1890, by the provisions of which the city council is expressly authorized:

Sec. 1, Subd. 30, Art. 5: “To regulate or license the manufacture and sale of cigars, tobacco, cigarettes, snuff, soda water and all light drinks of every kind, the manufacture and sale of which is not prohibited by the laws of the state.”

Sec. 1, Subd. 79: “To pass all ordinances, rules, and make all regulations, proper and necessary to carry into effect the powers granted to the cities, with such fines or penalties as the city council shall deem proper; provided, no fine or penalty shall exceed one hundred (100) dollars, and no imprisonment shall exceed three months for one offense.”

Sec. 2: “All actions brought to recover any fine or to enforce any penalty, under any ordinance of any city, shall be brought in the corporate name of the city as plaintiff. …”

Sec. 4: “… A warrant for the arrest of the offender may issue in the first instance upon the affidavit of any person that any such ordinance has been violated; and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof; and any person arrested upon any such warrant shall without any unnecessary delay be taken before the proper officer to be tried for the alleged offense. Any person upon whom any fine or penalty shall be imposed may upon order of the court before whom the conviction is bad be committed to the county jail, city prison, work house, house of correction or other...