State ex rel. Bartlett v. Fraser

• Decision Date: 04 February 1891
• Parties: State ex rel. Bartlett, District Attorney, v. Fraser et al.
• Court: North Dakota Supreme Court

1 N.D. 425

48 N.W. 343

State ex rel.

Bartlett, District Attorney,

v.Fraser et al.

Supreme Court of North Dakota.

Feb. 4, 1891.

Syllabus by the Court.

1. Where it appears that one of the defendants, who resides at St. Paul, Minn., is, through the agency of the other defendant, engaged in carrying on the business of keeping for sale and selling intoxicating liquor at a place of business located at Fargo, in the state of North Dakota, in violation of the prohibitory liquor law, held, that such place of business is a common nuisance, whether such liquor was or was not drank by purchasers at such place of business, with the knowledge and consent of the agent in charge of such place of business. Construing section 13, c. 110, Laws N. D. See State v. Chapman, (S. D.) 47 N. W. Rep. 411.

2. Held, further, since the passage by congress of the law commonly known as the “Wilson Bill,” that sales of intoxicating liquor in violation of the prohibitory legislation of North Dakota, which are made in this state by a non-resident, through an agent living in this state, are unlawful sales, whether the liquor sold is or is not imported liquor, or whether it is or is not contained in the original cask or package in which it was shipped out of another state or county. In re Van Vliet, 43 Fed. Rep. 761; In re Spickler, Id. 653.

Appeal from district court, Cass county; William B. McConnell, Judge.George F. Goodwin, Atty. Gen., Chas. A. Pollock, Asst. Atty. Gen., and S. B. Bartlett, for appellant. Ball & Smith and Tilly & Stewart, for respondents.

Wallin, J.

This is an action in equity, brought on behalf of the state by the district attorney for Cass county under section 13 of chapter 110 of the Laws of North Dakota of 1890. The plaintiff demands in its complaint, in substance, that the defendants be enjoined from the further prosecution of their business as liquor dealers, and that their place of business, located in the city of Fargo, be abated as a common nuisance. The complaint charges, in substance, that the defendants are carrying on the business of selling intoxicating liquor in Fargo at the number and street stated in the complaint. The defendant Simon Fraser answers separately as follows: “(1) That defendant denies each and every allegation in said complaint contained, except as hereinafter specifically admitted, denied or modified. (2) That defendant admits that S. B. Bartlett is district attorney, as alleged in paragraph one of said complaint. (3) And this defendant, for a further defense and answer to said complaint, says that at all times since the 20th day of July, A. D. 1890, in said complaint mentioned, this defendant was the duly-authorized agent of George Benz, George G. Genz, and Henry L. Benz, co-partners as George Benz & Sons, of the city of St. Paul, in the state of Minnesota, and as such agent to receive, offer for sale, and sell all kinds of spirituous and malt liquors at the city of Fargo, Cass county, state of North Dakota; also, except expenses and commissions, to remit the same to George Benz & Sons, his principals; and, so acting, this defendant, since the 20th day of July, A. D. 1890, at all times in said complaint mentioned, has continued to receive, store, offer for sale, and sell spirituous and malt liquors, shipped to him as such agent, at said city of Fargo, by his said principals, from the city of St. Paul, in the state of Minnesota; and that he has received, stored, offered for sale, and sold the same as such agent, at the city of Fargo, while contained in the original packages in which they were inclosed and shipped at said city of St. Paul, by his said principals, and in which the same were received by this defendant, as such agent, in said city of Fargo, and not otherwise. That this defendant has occupied the premises in said complaint described since the 20th day of July, A. D. 1890, as a store-room in which to receive, store, expose for sale, and to sell such goods, in manner and form aforesaid, and not otherwise. That said goods so received, stored, offered for sale, and sold as aforesaid were at all times since the said 20th day of July, A. D. 1890, in said complaint mentioned, the sole property of said George Benz & Sons, of the city of St. Paul, in the state of Minnesota, and were shipped to this defendant as their agent, in said city of Fargo, for the purposes aforesaid, from the city of St. Paul, state of Minnesota. Wherefore, this defendant prays: First, that the injunction granted by the court in this action be dissolved; second, that said action be dismissed as to this defendant, and that he go hence with his costs.” Defendant George Benz answers the complaint as follows: “(1) That this defendant denies each and every allegation in said complaint contained, except as hereinafter specifically admitted, denied, or modified. (2) That this defendant admits that S. B. Bartlett is district attorney, as alleged in paragraph one of said complaint. (3) That this defendant, for a further defense and answer to said complaint, says that at all times since the 20th day of July, A. D. 1890, in said complaint mentioned, this defendant has been the owner of the premises described in said complaint. That he has leased the same to Simon Fraser, co-defendant in said action, to be used and occupied by said Simon Fraser as a storeroom in which to receive, store, offer for sale, and sell spirituous and malt liquors, such business to be conducted in a lawful manner. That this defendant is informed and believes that said Simon Fraser, at all times since the 20th day of July, A. D. 1890, in said complaint mentioned, has occupied said building and premises as a storeroom to receive, store, offer for sale, and sell as agent for said George Benz, George G. Benz, and Henry L. Benz, copartners as George Benz & Sons, spirituous and malt liquors, shipped to him as such agent at the city of Fargo, by his said principals, from St. Paul, state of Minnesota, selling and disposing of the same in the original packages, in which said liquors were shipped from said city of St. Paul, and received by him at said city of Fargo. Wherefore this defendant prays- First, the injunction in this action be dissolved; second, that said action be dismissed, and that this defendant go hence with his costs.”

A trial was had in the district court upon an agreed state of facts, which embody, in substance, the facts and allegations contained in the answer of the defendants. We will only quote the fourth and fifth stipulations of fact, which are as follows: “That the following testimony of one J. C. Murray is agreed upon as being the only testimony offered in the case, and is here incorporated as a part of this statement of facts, the same being in words and figures following, to-wit: ‘State of North Dakota, county of Cass-ss.: I, John Murray, of lawful age, being duly sworn, say I know the defendant Simon Fraser. That I have seen him at his place of business. His business is a liquor dealer in the city of Fargo, county of Cass, state of North Dakota. His place of business is 516 1/2 on Front street, in the city of Fargo, Cass county, state of North Dakota. I was at his place of business within the past two or three days. I bought a small bottle of whisky in his said place of business, and drank it. Saw others drinking. I have been in his place of business five or six times within the past week. His is a place where intoxicating liquors are kept for sale, and sold and drank upon the premises. At the times I have been there I have seen divers persons drinking intoxicating liquors there, and have seen them buy the same there. It is a place where persons resort for the purpose of drinking intoxicating liquors as a beverage. J. C. Murray. Subscribed and sworn to before me this 21st day of August, A. D. 1890. S. B. Bartlett, District Attorney in and for Cass county, North Dak.’ It is further stipulated that all the liquor hereinbefore referred to was sold in original packages by the said defendant Simon Fraser, as the agent of George Benz & Sons, of St. Paul, Minnesota.”

The trial court made and filed its findings of law and fact as follows: “This cause coming on to be heard at a regular term of this court, held at the court-house in the city of Fargo, in said county and state, on the 10th day of September, A. D. 1890, the plaintiff being represented by S. B. Bartlett, Esq., district attorney, and Charles A. Pollock, Esq., and the defense by Messrs. Ball & Smith and Messrs. Tilly & Stewart, on the plaintiff's complaint and the separate answers of said defendants, together with the evidence introduced by the respective parties, and was argued by counsel on behalf of the plaintiff and defendants; wherefore the court makes and finds the following findings of fact herein, to-wit: (1) That the defendant Simon Fraser is the agent of George Benz & Sons, of St. Paul, Minnesota, and authorized as such agent to receive, store, and sell spirituous and malt liquors in the city of Fargo, in said Cass county, in the original package in which the same is consigned to him by his said principals at St. Paul, and received by him at said ...