City of Rochester v. Upman

• Decision Date: 01 January 1874
• Citation: 19 Minn. 78
• Parties: CITY OF ROCHESTER v. H. B. UPMAN.
• Court: Minnesota Supreme Court

Page 78

19 Minn. 78

CITY OF ROCHESTER

v.H. B. UPMAN.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Olmsted county, denying a new trial.

Henry C. Butler, for appellant.

Charles M. Start, for respondent.

BERRY, J.

This was a prosecution before the city justice of the city of Rochester for selling spirituous and intoxicating liquors without a license, in violation of a city ordinance.The defendant, having been convicted of the offense charged, and fined in the sum of $100, appealed to the district court for Olmsted county, and the judgment of the city justice having been there affirmed, he appeals to this court from an order of said district court denying him a new trial.The appeal to the district court appears to have been treated as an appeal upon questions of law alone, and to have been tried upon the return of the city justice by agreement of parties.

The warrant upon which defendant was arrested and arraigned was directed to the sheriff or any constable of Olmsted county, instead of to the marshal of the city, or any constable thereof, as required by section 5, subc.9, c. 21, Sp. Laws 1867.This was of course wrong; but the defendant, having been brought before the city justice upon the warrant, having gone to trial before the justice originally, and before the district court on appeal without, so far as appears, making any objection to the misdirection, has most effectually waived this ground of objection to the process, and fully submitted himself to the jurisdiction assumed over his person.SeeCom. v. Gregory,7 Gray, 498;Com. v. Henry,7 Cush. 512.

The defendant is also too late with whatever there is (if anything) in his objection that the warrant "does not recite or refer to any ordinance alleged to have been violated."

The warrant recites the making upon oath of a complaint that the defendant did, within the corporate limits of the city of Rochester, "unlawfully sell, etc., spirituous and intoxicating liquors, etc., without first having obtained a license therefor from the city council of said city, contrary to the form of the ordinance and statute in such case made and provided."

If the reference to the ordinance is less certain than good criminal pleading would require, defendant should have objected to it before interposing his general plea of not guilty, and before going to trial.But, so far as appears, no fault is found with the warrant until the case reaches this court.There is enough in the warrant, at any rate, to show with what offense defendant is charged, and he seems to have met with no practical difficulty in understanding what he was accused of, or in making his defenses.

Defendant argues at some length that the ordinance is invalid as not conforming to the charter of the city of Rochester.

Without stopping to consider in detail the grounds of his objections, it is enough to say that by the stipulation of the parties the ordinance is made part of the evidence offered by plaintiff on the trial before the justice, and no objection appears to have been made to it or to its introduction; and besides, it seems also to have been read in the evidence by the defendant himself.As with reference to the warrant, so with reference to the ordinance, objection is for the first time made in this court, so far as we discover.An objection made under such circumstances is entitled to very little favor.We will only add that, so far as the ordinance, as it appears on the paper book, is involved in this case, we see no reason why it does not conform to the plaintiff's present charter.Whether the ordinance as originally passed was right or wrong is not important, as it seems to have been amended in some respect, so that it is right now.As this is a criminal case, we have considered the foregoing objections, although it does not appear that any of them were made below, or even in defendant's original brief in this court, but in a supplemental brief furnished since the filing of plaintiff's points and authorities.

We now come to examine the more substantial points made in defendant's original brief.

Section 1 of said ordinance declares "that no person shall be permitted to sell * * * any spirituous * * * or intoxicating liquor of any kind within the city of Rochester without having first obtained from the common council of said city a license for that purpose."Section 3 prescribes a penalty for a sale without license.It is not disputed that the sale, upon which this prosecution was based, was made within the limits of said city, without license, and by defendant through his servant.Defendant is a druggist and he insists...