State ex rel. Ohlquist v. Swan

• Decision Date: 31 January 1890
• Parties: State ex rel. Ohlquist v. Swan, Sheriff.
• Court: North Dakota Supreme Court

1 N.D. 5

44 N.W. 492

State ex rel.

Ohlquist

v.Swan, Sheriff.

Supreme Court of North Dakota.

Jan. Term, 1890.

Syllabus by the Court.

1. When a party was held by a magistrate for a violation of the laws against selling intoxicating liquor as a beverage without license, in force on that subject when the constitution was adopted, and committed, in default of bail, and brought before this court on habeas corpus proceedings, claiming that he was unlawfully restrained of his liberty, because all pre-existing laws against selling intoxicating liquor without license were repealed by article 20 of the constitution, (being the prohibition article,) as being repugnant thereto, held that, if article 20 of the constitution be self-executing and operative, it repeals the pre-existing license law, including penalties.

2. But held, further, that said article is not self-executing; that it cannot be enforced by the penalties in the former license law; that the provision in that article that “the legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article, and shall thereby provide suitable penalties for the violation thereof,” clearly indicates the intent of the constitutional convention that supplemental legislation should be the means of enforcing said article.

3. Further, that, until such supplemental legislation is had, article 20, while prohibitory in form, is in fact only a declaration of principles, and without force to repeal the prior license law; and hence relator's restraint is not unlawful.

Application for writ of habeas corpus.Bangs & Fisk, ( Greene & Hildreth, of counsel,) for relator. John M. Cochrane, Dist. Atty., and George F. Goodwin, Atty. Gen., for respondent.

Bartholomew, J.

On the 22d day of January, 1890, the relator, Frank Ohlquist, applied to this court for a writ of habeas corpus, alleging that he was unlawfully restrained of his liberty by James K. Swan, sheriff of Grand Forks county. The petition states that the relator was duly arrested on January 21, 1890, upon a warrant issued by a justice of the peace of Grand Forks county, upon a complaint charging the relator with having, on the 10th day of January, 1890, sold intoxicating liquors in said county, in quantities less than five gallons, without having first obtained a license and given a bond therefor, as provided in section 1, c. 26, Laws Dak. 1879; that upon the hearing before said justice the relator was duly held to appear before the district court of said county, and admitted to bail for such appearance in the sum of $500. The relator, failing to give such bail, was by such justice duly committed to the custody of the respondent, as sheriff of said county. Relator, in his petition, claims that his imprisonment is illegal, because- First, the complaint upon which the warrant was issued does not state facts sufficient to constitute a public offense; and, second, that chapter 26, Laws 1879, for the violation of which relator is restrained of his liberty, is in conflict with article 20 of the constitution of the state of North Dakota, and consequently repealed thereby. The writ was issued January 22, 1890. On the 30th day of January, 1890, respondent made return to said writ, admitting the restraint, and alleging the arrest and proceedings before the magistrate in justification thereof. Relator moved to quash the return.

The decision of the question hinges upon the effect, if any, that article 20 of the constitution has upon pre-existing statutes. The act of congress known as the “Omnibus Bill,” and under which North Dakota became a state, contains the following: “And all laws in force, made by said territories at the time of their admission into the Union, shall be in force in said states, except as modified or changed by this act, or by the constitution of the states, respectively.” Omnibus Bill, § 24. Section 2 of the schedule of the constitution of this state reads as follows: “All laws now in force in the territory of Dakota which are not repugnant to this constitution shall remain in force until they expire by their own limitation, or be altered or repealed.” From the first organization of the territory of Dakota it was the policy of its citizens to restrain the sale of intoxicating liquors. The earlier enactments on this subject are codified as chapter 35, Pol. Code 1877, which is a complete license law. The first section is as follows: “It shall be unlawful for any person, by himself, by agent, or otherwise, to sell in any quantity intoxicating liquors, to be drank in, upon, or about the premises where sold, or to sell such intoxicating liquors to be drank in any adjoining room, building, or premises, or other places of popular resort, connected with said premises where sold, without having first obtained a license and given bond as hereinafter provided.” Section 10 of that act recites the penalties for a violation thereof, declaring such violation a misdemeanor punishable by fine of not less than $20 or more than $150. In 1879 the territorial legislature passed a new and complete act upon this subject, known as “Chapter 26, Laws 1879,” and being the law under which relator is charged. The act is very similar to chapter 35, Pol. Code 1877. The first section of the former law, before quoted, is changed by inserting an additional provision, making it unlawful to sell intoxicating liquors, for any purpose, in any quantity less than five gallons, without first obtaining a license, etc.; and the penalty for a violation of the law is increased to not less than $100 or more than $300 for each and every offense, or imprisonment not exceeding 60 days in the county jail, or both, in the discretion of the court. See section 11, c. 26, Laws 1879. In 1887, chapter 70, Laws 1887, known as the “Local Option Law,” was passed by the territorial legislature. By the provision of that law the people of any county could, by a majority vote, absolutely prohibit the issuance of any license to sell liquors in such county; and section 5 of that act provided that, “in addition to the penalties now prescribed by law, any person or persons who may sell any intoxicating liquors without a license having been duly granted as provided by law, or where the license is granted in violation of this act, shall be restrained from so doing by proper injunction,” etc. The supreme court of Dakota territory, in Territory v. Pratt, 43 N. W. Rep. 711, and in Territory v. O'Connor, 41 N. W. Rep. 746, held that chapter 70 continued in force all the penalties contained in chapter 26, Laws 1879, and that the injunctional feature was additional and cumulative. The same legislature that enacted the local option law, evidently fearing that the position might be taken that the penalties prescribed in chapter 26, Laws 1879, presupposed the power to obtain a license, amended the first section of said chapter 26 to read as follows: “It shall be unlawful for any person, by himself, by agent, or otherwise, to sell, in any quantities, intoxicating liquors to be drank in, upon, or about the premises where sold, or to sell such intoxicating liquors to be drank in any adjoining room, building, or premises, or other place of popular resort connected with such premises where sold, or to sell such intoxicating liquors, for any purpose, in any quantities less than five gallons, without first having obtained a license and given a bond as hereinafter provided: provided, that intoxicating liquors shall not be sold in any quantity, where no license is granted by the board of county commissioners, except as provided for in section 13,”-with another proviso, immaterial to this case. Section 13 of said act relates to druggists.

From this legislation it is apparent that the original determination of the citizens of Dakota territory to restrict the liquor traffic has constantly augmented, and such augmentation is seen in the increased restriction and increased penalties with which they have hedged the traffic about. No backward step has been taken. Such was the state of the law on that subject when the constitutional convention of North Dakota met, in July, 1889. That convention, with full knowledge of the past legislation, crystalized what it believed to be the desire of the people of North Dakota into article 20 of the proposed constitution, which is as follows: “No person, association, or corporation shall, within this state, manufacture, for sale or gift, any intoxicating liquors; and no person, association, or corporation shall import any of the same, for sale or gift, or keep or sell, or offer the same for sale or gift, barter or trade, as a beverage. The legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article, and shall thereby provide suitable penalties for the violation thereof.” This article was adopted as a portion of the constitution. Relator takes the broad position that chapter 26 of the Laws of 1879, as amended, is repugnant to the above article, and under section 2 of the Schedule said chapter is no longer in force, or at least that said chapter is “changed” and “modified” by said article, in so far as it provides for the issuance of license, and hence cannot stand under the provision of the omnibus bill as a licensing statute; and further, as the evident intent and purpose of said chapter 26 was to establish a license system, that when said system is abrogated all penalties for its violation necessarily fall with it. The position of relator leads to the inevitable conclusion that there is to-day, in North Dakota, no law by which the open and notorious sale of intoxicating liquors for any purpose, and in any quantity, can be punished. We may go further. Article 20 provides that the “legislative assembly shall by law prescribe regulations for the enforcement of this article, and shall thereby provide suitable penalties for the violation thereof.” The obligation thrown...