State ex rel. Sheeks v. Hilliard
| Decision Date | 31 October 1901 |
| Citation | 87 N.W. 980,10 N.D. 436 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Lauder, J.
Action by the state, on relation of H. Sheeks, against May G Hilliard and others. Judgment for plaintiff, and defendant Hilliard appeals. Affirmed.
Affirmed.
Purcell & Bradley, for appellant.
Defendants carried on their business as druggists, and sold intoxicating liquors in compliance with law, except that they sold at a place other than that specified in the petition for license. The petition asked the right to sell intoxicating liquors as druggists in the village of Lidgerwood. Hilliard, at the time of leasing the building, saw and read the permit, and relied thereon as authority to Koch & Phillips to sell intoxicating liquors in the premises. A license to sell liquors is not void because it fails to specify the house where the liquors are sold. Goforth v. State, 60 Miss. 766; State v. Walker, 16 Me. 241; State v. Gerhardt, 3 Jones (N. C.) 178. A license protects the holder so long as it remains uncancelled. Commonwealth v. Graves, 18 B Mon. 33. If the license specifies the place it will not justify sales in any other place. State v Prettiman, 3 Harr. 570; State v. Hughes, 24 Mo. 147. The above cases are cited as illustrating the principles by which § 7594, Rev. Codes, should be construed.
Bosard & Bosard, for respondent.
A person holding a permit issued on petition will be protected in the sale of liquors under § § 7594, 7596, Rev. Codes, only when he sells in the place in the town, village or ward, set forth in his petition for the permit. A sale under a license, in another place than that which the license was issued to cover is not within its protection. Creckmore v. Com., 12 S.W. 628; Com. v. Holland, 47 S.W. 216; Com. v. Ashbury, 47 S.W. 217; Pearce v. State, 32 S.W. 697; State v. Fredricks, 16 Mo. 382; Com. v. Welch, 147 Mass. 374; State v. Gerhardt, 33 L. R. A. 313. The claim of good faith will not protect appellant any more than such a claim would protect him against a sale to minor or a person in the habit of becoming intoxicated. McCoy v. Clark, 81 N.W. 159; Good faith is no defense where the act was done without authority. State v. Bain, 75 N.W. 403; Bartell v. Hobson, 78 N.W. 689.
This action is prosecuted on behalf of the state to abate an alleged liquor nuisance kept and maintained by the defendants Lewis W. Koch and Henry A. Phillips in a building situated upon lot 7, in block 11, in the village of Lidgerwood, in Richland county which lot and building they occupied under a lease from May G. Hilliard, the other defendant herein, contrary to the provisions of chapter 63 of the Penal Code, prohibiting unlawful dealing in intoxicating liquors. Judgment was entered in the district court abating said alleged nuisance, and for costs, which were taxed and allowed in the sum of $ 196.25, and were adjudged to be a lien on the premises. May G. Hilliard, the owner of the property, alone appeals from the judgment. The errors upon which she relies are based upon the judgment roll proper. The findings of fact made and filed by the trial judge are not challenged. The sole contention is that the conclusions of law based thereon are erroneous.
The trial court found that intoxicating liquors were sold on the premises above described by appellant's tenants, and that such sales were without authority of law, and in violation of chapter 63 of the Penal Code, above referred to, whereby under § 7605, Rev. Codes, embraced in said chapter, such premises became and were a common nuisance. Appellant's contention is that the sales of intoxicating liquors by her tenants on said premises were made under the authority of a druggist's permit, issued by the county judge of Richland county, authorizing the sales which were made, and that, therefore, such sales were not unlawful, and her premises were not a common nuisance. Concededly, appellant's position is correct, on the facts of this case, if her tenants had the protection of a druggist's permit, for no sales appear to have been made which would be in violation of the restrictions placed upon sales by druggists holding permits. The sole question, then, is, did her tenants have a druggist's permit to sell intoxicating liquors on the premises in question? This question is to be determined as one of law from the following facts: Koch was a registered pharmacist, and had a druggist's permit, which was issued by the county judge of Richland county, by its terms authorizing him to sell intoxicating liquors in the village of Lidgerwood, which permit was issued prior to the occupancy of appellant's premises, and for another place in said village, to-wit, lot 14 in block 17. The trial court found that this permit was granted upon "a petition made by said Louis W. Koch, with the signers as required by law, for a permit to sell intoxicating liquors as a druggist, and in said petition named as the particular place in said village of Lidgerwood where he was to conduct said business another property than the property described in the complaint, to-wit, lot 14, in block 17, in the said village of Lidgerwood, and the said Louis W. Koch had no other permit to sell intoxicating liquors as a druggist in Lidgerwood than the one issued upon the said petition for lot 14 in block 17, and the said Henry A. Phillips had no permit of any kind to sell intoxicating liquors; that when defendant Hilliard leased said premises to defendants Koch & Phillips she saw and read the permit introduced in evidence, and relied thereon as authority in said Koch & Phillips to sell intoxicating liquors on said premises; * * * that the only violation of the prohibitory liquor law * * * consisted in the sale of intoxicating liquors by said defendants Louis W. Koch and Henry A. Phillips in all respects in accordance with law, except that such intoxicating liquors were sold upon a permit which did not specify the particular place in the village of Lidgerwood at which said sales were to be made and at a place different from the place specified at which sales were to be made in the petition of said Louis W. Koch for such permit. Briefly stated, the facts are these: Koch had a permit under which he and Phillips as copartners operated a drug store and sold intoxicating...
To continue reading
Request your trial