City of Yankton v. Douglass
| Citation | 66 N.W. 923,8 S.D. 441 |
| Parties | CITY OF YANKTON v. DOUGLASS. |
| Decision Date | 09 April 1896 |
| Court | Supreme Court of South Dakota |
Syllabus by the Judge.
1. A complaint made to a police magistrate, under an ordinance of the city of Yankton, which declares "that any person who, within the limits of this city, shall keep and maintain a tippling shop, *** shall upon conviction be fined," etc., in which it is charged that the defendant, "at the city and county of Yankton, on the 17th day of September, A. D. 1893, with force and arms, did keep and maintain a tippling shop, *** within the limits of the city of Yankton state of South Dakota, against the peace and dignity of said city of Yankton, and contrary to the form of the ordinance in such case made and provided," states facts sufficient to constitute a public offense under such ordinance. Haney, J dissenting.
2. When an appeal is taken from a justice's court upon questions of both law and fact, the case is tried anew in the appellate court, and no statement of the case is provided for; and in such case the appellate court cannot review alleged errors of the justice's court.
3. Improper remarks, made by counsel, on the trial of a cause in the presence of the jury, which the jury are at once directed by the court to disregard, will not, ordinarily constitute sufficient ground for a reversal of the judgment, as this court will presume that the jury have followed the direction of the court, and disregarded them.
4. An act may constitute a penal offense under the laws of the state and further penalties, under proper legislative authority, may be imposed for its commission by municipal laws; and the enforcement of the one would not preclude the enforcement of the other.
5. There is no conflict between the power conferred by a city charter to "prohibit and suppress tippling shops," and the prohibitory liquor law of this state; and the provisions of the charter were not repealed by such law.
Error to circuit court, Yankton county; E. G. Smith, Judge.
Thomas Douglass was convicted of keeping a saloon in violation of a city ordinance, and brings error. Affirmed.
V. V. Barnes (Estes & Lambert, of counsel), for plaintiff in error.
French & Orvis, Hugh J. Campbell, City Atty., John Holman, State's Atty., and Coe I. Crawford, Atty. Gen., for defendant in error.
Defendant was convicted,
in justice court, for violating a city ordinance. Upon appeal to the circuit court, the action was tried anew, resulting in conviction and judgment against him. He brings the case here for review upon writ of error.
It is contended that the facts stated in the complaint do not constitute an offense under the ordinance alleged to have been violated. Omitting the title, such complaint is as follows: "August Seibert, being by me duly sworn, on oath complains and charges that the defendant, Thomas Douglass, at the said city and county of Yankton, on the 17th day of September, A. D. 1893, with force and arms then and there did keep and maintain a tippling shop, a place where intoxicating liquors were sold to be used as a beverage, within the limits of the city of Yankton, state of South Dakota, against the peace and dignity of the said city of Yankton, and contrary to the form of the ordinance in such case made and provided; and prays that the said Thomas Douglass may be arrested and dealt with according to law." The ordinance provides "that any person who, within the limits of this city, shall keep or maintain a tippling shop, or place where intoxicating liquors are sold to be used as a beverage, or shall sell any intoxicating liquors in any such tippling shop or place, shall upon conviction be fined in any sum not less than thirty (30) dollars, nor more than one hundred (100) dollars, and in addition thereto may be imprisoned not to exceed thirty days." Under a special charter, the city of Yankton has power "to restrain, prohibit and suppress tippling shops, billiard tables, ten pin alleys, houses of prostitution and other disorderly houses and practices, games and gambling houses, desecration of the Sabbath, commonly called Sunday, and all kinds of indecencies." Such being its conceded authority, the ordinance must be construed with reference thereto. It cannot include what is not included in the charter. Under it the city may restrain, prohibit, and suppress tippling shops, but it is not authorized to restrain, prohibit, or suppress the mere sale of intoxicating liquors. The term "tippling shop" has a well-defined legal meaning. It is a place in which liquors are sold in drams, or small quantities, and where men are accustomed to tipple. To tipple is to drink spirituous or strong drink habitually. Webst. Dict. A tippling shop is a building or room wherein intoxicating liquors are habitually sold to be drank upon the premises. Bish. St. Crimes, § 1065; Black, Intox. Liq. § 20; And. Law Dict.; City of Emporia v. Volmer, 12 Kan. 622. We have found no well-considered definition of the term which does not include the element of drinking upon the premises. In so far as the ordinance attempts to prohibit the mere sale of intoxicating liquors, or the keeping of a place wherein such liquors are sold to be drank as a beverage elsewhere, we think it exceeds the authority of the charter, and is to that extent invalid. The clause, "a place where intoxicating liquors were sold to be used as a beverage," inserted in the complaint, not being authorized by the charter, and therefore not legally a part of the ordinance, cannot properly constitute a part of the complaint, and it will be treated as surplusage, and disregarded. Without this allegation in the complaint, it is clearly sufficient. The term, "did keep and maintain a tippling shop," sufficiently defines the offense charged, as the term "tippling shop," as we have seen, has a well-understood and a well-defined meaning. Mr. Bishop, in his work on Statutory Crimes (section 1065), speaking of the indictment in this class of cases, says: "The indictment is only required to charge, in the general words of the statute, if so its terms are duly covered, that, at a specified time and place, the defendant did keep a drinking house and tippling shop." The words "drinking house" add nothing to the charge, as a tippling shop includes a drinking house. In City of Emporia v. Volmer, 12 Kan. 622, a similar complaint was held good by the supreme court of Kansas.
It is further contended that the police justice erred in refusing to allow the defendant to challenge certain jurors peremptorily who were impaneled to try the case. But we do not deem it necessary to consider that question, for the reason that it is not properly before us. An appeal was taken from the justice court to the circuit court upon questions of both law and fact. In such cases no statement is made, as the case is tried anew in the circuit court. The error, if any was committed, could not have been reviewed by the circuit court, and cannot be reviewed by this court on writ of error. The proceedings to be taken in the two classes of appeals from a justice court are fully pointed out by sections 6129-6131, 6136, 6177, 6178, Comp. Laws. See Coughran v. Wilson (S. D.) 63 N.W. 774.
It is also urged, as reversible error, that the defendant was prejudiced by the remarks of counsel for the city in presence of the jury. The remarks to which our attention was first called were improper, but evidently made inadvertently without any improper motive. The court, immediately upon its attention being called to the matter, instructed the jury to disregard the remarks. This, we think, cured the error. The second remarks objected to seem only to have been the conclusion or opinion of counsel as to the result of the evidence. We discover no error in these remarks. The counsel for appellant further contends that, while the city counsel has conferred upon it power to "restrain, prohibit and suppress tippling shops," it did not possess the power or authority to pass an ordinance imposing a penalty of fine and imprisonment upon one who should violate the ordinance, and that so much of the ordinance, therefore, as prescribes such a penalty is unauthorized and void. In other words, he contends that power "to restrain, prohibit and suppress" does not include the power to punish by fine and imprisonment, but only the power to pass an...
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