City of Elk Point v. Vaughn

• Decision Date: 31 January 1875
• Citation: 1 Dak. 113,46 N.W. 577
• Parties: City of Elk Point v. Vaughn.
• Court: South Dakota Supreme Court

46 N.W. 577

1 Dak. 113

City of Elk Point

v.Vaughn.¹

Supreme Court of the Territory of Dakota.

Jan. Term, 1875.

E. W. Miller and Joy & Wright, for appellant. Alex Hughes, for appellee.

KIDDER, J.

This case comes before us on an appeal from the district court of Union county. It is for a violation of city ordinance No. 17. It was tried first before a justice of the peace, by whom the defendant was convicted, when an appeal was taken to the district court. The information alleges that the defendant sold one gallon of spirituous liquor, by measure, to one B. M. Brink, on the 26th day of July, 1874, without license or lawful authority to make such sale, and contrary to said ordinance. The first section of this ordinance makes it unlawful for any person or persons, by agent or otherwise, to keep any tippling shop, dram-shop, or saloon in the city of Elk Point, or to sell, barter, exchange, or give away, or in any manner dispose of, spirituous, vinous, or malt liquors, by the drink, or to be drank in, upon, or about the premises where sold, or in any place of public resort in said city. The second and third sections make it unlawful to sell, barter, exchange, or give away spirituous, vinous, or malt liquors, by measure, in said city, without first obtaining a license from the proper city authorities, which license permits the person to whom it is issued to sell said liquors by measure at one place of business in said city, for one year from the 1st day of July succeeding the date of its issue. It is also provided therein that the party applying for such license shall pay the sum of $500 therefor to the treasurer of the city. The appellant was convicted in the district court, and sentenced to pay a fine of $75, and to stand committed to the city jail until said fine should be paid.

The appellant insists that this ordinance is void for several reasons:

1. That the act incorporating the city of Elk Point, approved January 10, 1873, in pursuance of which this ordinance was passed, is void, on the ground that the act of congress, approved March 2, 1867, provides that “the legislative assemblies of the several territories shall not, after the passage of this act, grant private charters or special privileges.” This act, in our judgment, has no application to this case. The city of Elk Point is a public corporation. 1 Dill. Mun. Corp. §§ 9-19, and notes. The term “especial privileges” refers to the granting of monopolies, such as ferries, trade-marks, the exclusive right to manufacture certain articles, or to carry on certain business in a particular locality to the exclusion of others. The granting of a public charter does not confer any “especial privileges” within the meaning of this act. To construe it otherwise would deny the power of the legislature to create a township or a county. The authority to pass by-laws and to regulate the internal affairs and police of a municipal corporation are incident to its existence. Indeed, it seems that it is unnecessary to discuss this question further, if we rely upon authorities which go so far as to settle the question that the validity of a corporate organization cannot be questioned in this action. Evidence that the corporation is acting as such is all that is required. Coles Co. v. Allison, 23 Ill. 437;Tisdale v. Town of Minonk, 46 Ill. 10;Kettering v. City of Jacksonville, 50 Ill. 39; Town of Decorah v. Gillis, 10 Iowa, 235; 1 Dill. Mun. Corp. § 351. But we will examine the questions presented.

2. It is also claimed that the ordinance is repugnant to and in violation of the laws of the territory. It is well settled by authority that in the absence of controlling general legislation respecting the sale of intoxicating liquors, it is competent for cities and towns to require a corporate license of persons who may desire to sell such liquors, and to punish persons for selling the same without license from the proper authorities. The powers exercised by municipal corporatious are superadded to those exercised by the territory in the same locality. Waldo v. Wallace, 12 Ind. 584;Rogers v. Jones, 1 Wend. 261, and cases there cited; Block v. Town of Jacksonville, 36 Ill. 305;Trustees v. Keeting, 4 Denio, 341; Cooley, Const. Lim. 198, 199, and notes; 1 Dill. Mun. Corp. §§ 298-302, and notes on page 376; Com. v. Turner, 1 Cush. 493; and Com. v. Dow, 10 Metc. 382,-are cited by the counsel for the appellant, and are relied upon to sustain him. These authorities decide, generally, that a corporation, by virtue of a general welfare clause in its charter, cannot further regulate the sale of intoxicating liquor where the subject is fully provided for by the laws of the state. The statutes of Massachusetts, under which many of these decisions were made, conferred but very limited powers on the corporations. There is a wide distinction between the grant of a power to pass ordinances upon specified and enumerated subjects, and the authority derived from the general welfare clause usually inserted in municipal charters. 1 Dill. Mun. Corp. § 250, and notes; note 1, page 366, and sections 253, 254. Subdivision 4 of section 10, art. 2, of the charter of the city of Elk Point expressly authorizes the city council to levy and collect a license tax on liquor sellers and saloon keepers. Chapter 30 of the Laws of 1867-68 authorizes the county commissioners of their respective counties to collect a license on the sale of liquors in quantities of less than one quart. There is no conflict between this ordinance and the act referred to. Both are intended as police regulations,-the former by virtue of the police power of the territory, and the latter by virtue of the police power of the corporation. The authority to act in each case is given by the laws of the territory. The county license taken out by the appellant is no bar to a prosecution under this ordinance, and was properly excluded when offered in evidence on the trial in the district court. But it is urged that the county license is a contract in which the appellant had vested rights which could not be taken from him by subsequent legislation. This question has been settled by numerous decisions; a license to sell liquor is not a contract, but simply a permit to do that which it was unlawful to do without it. Cooley, Const. Lim. 584. A person who has a license to sell liquor is bound by subsequent legislation upon the subject. State v. Fairfield, 37 Me. 517; Foster v. Dow, 29 Me. 442; Hirn v. State, 1 Ohio St. 15;State v. Holmes, 38 N. H. 225;City of Hannibal v. Guyott, 18 Mo. 515; State v. Andrews, 26 Mo. 171, 28 Mo. 14, 19; Cooley, Const. Lim. 283.

3. It is claimed that the sale of liquor without a county license is an indictable offense, and that when a sale is indictable pursuant to the laws of the territory, a municipal corporation has no power to impose a penalty for the same act. The sale of liquor without a county license is not an indictable offense under the statutes of this territory. Chapter 30 of the Laws of 1867-68, and chapter 25 of the Laws of 1872-73, prescribed the penalty for selling liquor without a county license. Justices of the peace have exclusive jurisdiction of all misdemeanors where the maxmium punishmentfixed by law does not exceed a fine of $100, or imprisonment in the county jail 30 days, or both such fine and imprisonment. Id. c.27. The maximum punishment fixed by law for this offense is a fine not exceeding $100. But selling liquor without having taken out a county license is a separate and distinct offense from selling liquor without the license provided for by the ordinance under which this action was brought. The county of Union and the city of Elk Point are each expressly authorized to require a license for the sale of liquor. The authorities cited by the appellant on this point refer to cases where municipal corporations prescribe an additional penalty to the state law for acts that were essentially criminal, and were offenses at common law, as assault and battery, larceny, etc. They do not decide that municipal corporations cannot make necessary and reasonable police regulations, and enforce the same by reasonable penalties. It is a power incident to the creation of these corporations.

4. Section 6 of said ordinance provides that any person who shall offend against this ordinance or any of the provisions thereof shall be punished by a fine of not less than $50, nor more than $100, and by imprisonment in the county jail not to exceed 30 days. The appellant insists that the authority to punish a violation of this ordinance by imprisonment was not conferred by the charter, and that the ordinance is for this reason void. It is conceded that the sentence of the district court is authorized by the charter and ordinance. The charter does not confer the power to punish a violation of this ordinance by imprisonment, except that the defendant may be committed until the fine is paid, and to this extent the ordinance is void, but the whole ordinance is not void because the penalty imposed is in excess of that which is authorized by the charter. An ordinance may be good in part and void as to the residue. To render the whole ordinance void, the good and the bad parts must be essentially and inseparably connected in substance. If, omitting the void part, that which remains is complete in itself, and capable of being executed, it must be sustained. City of Burlington v. Kellar, 18 Iowa, 65; Rogers v....