Minneapolis Brewing Co. v. McGillivray

Decision Date08 October 1900
Citation104 F. 258
PartiesMINNEAPOLIS BREWING CO. v. McGILLIVRAY et al.
CourtU.S. District Court — District of South Dakota

E. T Taubman (Albert C. Cobb and J. O. P. Wheelwright, of counsel), for plaintiff.

John L Pyle, Atty. Gen., John H. Perry, and C. J. Porter, for defendants.

CARLAND District Judge.

The above-entitled action has been submitted on general demurrer to the bill. The bill alleges the following facts: The plaintiff is a corporation created, organized, and existing under and by virtue of the laws of the state of Minnesota and having its principal place of business in the city of Minneapolis, in said state. That the defendants are citizens of the state of South Dakota, D. A. McGillivray being the sheriff of the county of Lake. McGovern is the chief of police of the city of Madison, in the state of South Dakota C. J. Porter is the state's attorney in and for said Lake county; and the defendants Bingham, Buxton, and Schuster constitute the board of county commissioners of said county, and are the officers upon whom the duty is cast by law of enforcing the provisions of chapter 72 of the Session Laws of South Dakota for the Year 1897. That at all times mentioned in the bill the plaintiff was, and now is, engaged in extensively manufacturing and selling beer and other malt liquors, having its brewery or place of manufacture in the city of Minneapolis. That for more than a year last past plaintiff has owned and maintained, and still owns and maintains, in the city of Madison, in the county of Lake, in the state of South Dakota, a warehouse or depository in which, during said times, it has been storing, in original packages, a portion of the product of its said brewery, under the circumstances and for the purposes hereinafter detailed. That at frequent intervals, in the ordinary and usual course of its business, during the times aforesaid, it has been shipping from its brewery in Minneapolis to its said warehouse at Madison, in barrels, kegs, and bottles, a portion of its manufactured product, for storage there until sold by plaintiff, as a wholesaler, to its various customers in South Dakota in the same original packages in which it was so put up, shipped, and stored. That plaintiff has no brewery or place of manufacture within the state of South Dakota, and it has not made, nor does it propose to make, any sales there, except from the product of its brewery at Minneapolis, and in original packages. That plaintiff's business, as it has always been conducted and carried on in said city of Madison, and as plaintiff in the future intends to conduct and carry it on, consists solely in its maintaining said warehouse for the purposes hereinbefore set forth, and in the removal of the beer stored therein for sale and delivery in original packages by plaintiff, as a wholesaler, among its customers in the state of South Dakota. That in order for plaintiff to safely and economically transport its said product from the state of Minnesota to the state of South Dakota, for sale and distribution there among its customers in original packages, and in order that said product may be preserved and kept from becoming spoiled in transit, it is necessary to have said warehouse in said city of Madison; and, for the purposes hereinbefore stated, for more than one year last past said plaintiff has been conducting said business and maintaining said warehouse at said city of Madison, and intends and desires so to do in the future, and would now be so conducting said warehouse and said business, except for the unlawful and wrongful acts of the defendants as hereinafter set forth. That during the times aforesaid it has had, and now has, a resident agent at said city of Madison in charge of said warehouse, and in the sale and distribution of the product from time to time stored therein. That plaintiff's said business at said city of Madison, connected with the maintenance of said warehouse, and for the sale of its said product stored therein and distributed therefrom, has been exceedingly profitable to plaintiff, and that with the year ending July 1, 1900, its sales of beer stored in said warehouse and distributed therefrom exceeded $10,000, from which it derived a profit of more than $2,000; and, if plaintiff is allowed to continue in the operation and maintenance of said warehouse and in the conducting and operation of its said business at said Madison without being molested or disturbed by the defendants, its annual profits therefrom will exceed the sum of $2,000. That plaintiff has invested in said warehouse, in the construction of the same, and in the expenses incidental thereto, a sum exceeding $1,500, and that said warehouse is not adapted or suitable for any purpose except the one to which it has heretofore been put by plaintiff. That since the 1st day of July, 1900, the defendants, in their official capacity aforesaid, and claiming the right so to do under and pursuant to the provisions of chapter 72 of the Session Laws of South Dakota for the Year 1897, have demanded of plaintiff that it pay for continuing to carry on its said business at said city of Madison, and for the continued operation and maintenance of its warehouse at that place, the license fee of $600 specified in section 1 of said act upon the business of selling only brewed or malt liquors at wholesale, and that plaintiff declined and refused to pay said fee upon the ground that said statute so requiring its payment was unconstitutional and void. That upon the refusal of plaintiff to pay said license fee, and for the alleged reason that it did not pay the same, the defendants, claiming to act in their official capacity as aforesaid, and claiming to be authorized by the statute aforesaid, wrongfully and unlawfully threatened to close said warehouse so operated and maintained by this plaintiff at said city of Madison as aforesaid, and wrongfully and unlawfully threatened to prosecute criminally this plaintiff and its said local agent under section 5 of said act, and to so prosecute for each violation committed on each day if said warehouse was continued to be operated as aforesaid by plaintiff, or if plaintiff continued to transact the business theretofore transacted by it at said Madison. That plaintiff, by reason of said threats, and in order to avoid a multiplicity of criminal suits against plaintiff and its local agent, and the expense and cost that would have been necessarily incurred in connection therewith, and in order to prevent having a large amount of its manufactured product stored in said warehouse without being able to sell or dispose of the same as it had been in the habit of doing since the 1st day of July, 1900, has closed its said warehouse, and has ceased to ship to it or store therein any of its product, and has ceased to use it as a distributing depot. That plaintiff is desirous of at once opening up its said warehouse at said city of Madison, and of using and employing the same in the manner and for the purposes only for which it has heretofore been used and employed by plaintiff, and it is about so to do; and, unless the defendants are restrained and enjoined from so doing, because of plaintiff's refusal and failure to pay said unlawful license fee they, the said defendants, will permanently close said warehouse, and subject plaintiff and its said local agent at Madison to a multiplicity of suits and innumerable criminal prosecutions, and utterly ruin and destroy plaintiff's said business at said city of Madison. The plaintiff prays that said statute of the state of South Dakota may be adjudged to be unconstitutional and void, and that the defendants be permanently restrained and enjoined from attempting to enforce payment from plaintiff of said unlawful license fee of $600, and from in any wise interfering with plaintiff's said warehouse at said city of Madison, and its said business connected therewith.

The title of chapter 72 of the Session Laws of South Dakota for the Year 1897 is as follows:

'An act to provide for the licensing, restriction and regulation of the business of the manufacture and sale of spirituous and intoxicating liquors.'

Section 1 of said act is as follows:

'That in all townships, precincts, towns and cities of this state there shall be annually paid the following license upon the business of the manufacturing, selling or keeping for sale by all persons whose business in whole or in part consists in selling or keeping for sale, or manufacturing in this state, distilled, brewed or malt liquors, or mixed liquors, as follows: * * * Upon the business of selling only brewed or malt liquors at wholesale, $600 per annum, said license to be paid in each township, precinct, town or city in which said wholesaler has or operates a warehouse or depository; upon the business of manufacturing brewed or malt liquors, $400 per annum. * * * No person, firm or corporation paying a manufacturer's license in this state on brewed or malt liquors under this act shall be liable to pay a wholesale dealer's license on the product of such manufactory. * * * '

Section 2 provides as follows:

' * * * Wholesale dealers shall be held and deemed to mean and include all persons who sell or offer for sale or deliver such liquors or beverages in quantities of five gallons or more at any one time to any person or persons.'

Plaintiff claims that said chapter 72 is unconstitutional and void First, that it is repugnant to that clause of the constitution of the United States providing that the congress shall have power to regulate commerce among the several states; second, that it is repugnant to that clause of the constitution of the United States declaring that the citizens of each state shall be entitled to all the...

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23 cases
  • State v. Bryan
    • United States
    • Florida Supreme Court
    • December 19, 1905
    ... ... This ... need not detain us long. While it is true, as was held in ... Minneapolis Brewing Co. v. McGillivray (C. C.) 104 ... F. 258, cited by the relator, that 'the ... ...
  • Lowry, Ins. Com'r. v. City of Clarksdale
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    ... ... 12 ... Corpus Juris, page 786; Minneapolis Brewing Co. v ... McGillivray, 104 F. 258; Grainger v. Douglas Park ... Jockey Club (C. C. A ... ...
  • Dunn v. Nevada Tax Commission
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    ...L.Ed. 347; Scott v. Donald, 165 U.S. 58, 17 S.Ct. 265, 41 L.Ed. 632; Guy v. Baltimore, 100 U.S. 434, 25 L.Ed. 743; Minneapolis Brewing Co. v. McGillivray, C.C., 104 F. 258. ...
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    ... ... 123, 52 L.Ed. 714, 13 L.R.A. (N.S.) 932, 28 ... S.Ct. 441, 14 Ann. Cas. 764; Minneapolis Brewing Co. v ... McGillivray, 104 F. 258; McConnell v. Arkansas Brick & Mfg. Co. 70 Ark. 568, ... ...
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