State v. Ludwig

• Court: Minnesota Supreme Court
• Writing for the Court: McMillan
• Citation: State v. Ludwig, 21 Minn. 202 (Minn. 1875)
• Decision Date: 11 January 1875
• Parties: STATE OF MINNESOTA <I>vs.</I> MARTIN LUDWIG.

21 Minn. 202

STATE OF MINNESOTA vs. MARTIN LUDWIG.

Supreme Court of Minnesota.

January 11, 1875.

Appeal by defendant from an order of the district court for Hennepin county, Vanderburgh, J. presiding, denying a motion to dismiss the complaint.

L. Gronlund, for appellant.

A. N. Merrick, for respondent.

McMILLAN, C. J.

A complaint was duly made, before a justice of the peace of the city of Minneapolis, against the defendant Ludwig, charging that on Sunday, April 27, 1873, at the city of Minneapolis in Hennepin county, the defendant Ludwig, holding a license under the provisions of ordinance No. 1 of the city of Minneapolis, approved April 29, 1872, then and there being, did wilfully, unlawfully and wrongfully sell to one Cornell two glasses of malt liquor, commonly called beer, contrary to the ordinance in such case made and provided, and against the peace and dignity of the State of Minnesota. Upon the trial before the justice, the defendant was convicted and adjudged to pay a fine of fifteen dollars and costs of suit. The defendant appealed from the judgment of the justice, upon questions of both law and fact, to the district court. The case having been regularly called for trial in the district court, the defendant moved to dismiss the complaint and action, on the ground that the complaint does not state facts constituting any offence. By consent, the charter of the city of Minneapolis, and the ordinance of said city, approved April 29, 1872, in relation to licenses, were offered and used on said motion, and referred to in connection with the general laws. The court denied the motion, and the defendant appealed from such order.

The ordinance of the city which is relied upon as sustaining the proceedings against the defendant, among other provisions contains the following: "Section 6. Every saloon and restaurant, and the bar of every tavern, inn or other place where liquors are sold by the glass or drink, shall be closed during every Sunday, and upon every day of a general or city election; and no person holding a license under the provisions of this ordinance, shall sell, give away, or in any manner dispose of any spirituous or fermented liquors or malt beverages, within the limits of said city, on any Sunday or day of a general or city election; nor shall any such licensed person permit any gambling or games of chance, for money or anything of value, to be practised or carried on, at any time, in any room or place in any building wherein any kind of liquor is retailed by him, and which may be occupied or rented by such licensed dealer, or under his control. Any person who shall be guilty of violating any of the provisions of this section, shall, upon conviction thereof, be punished by a fine not exceeding twenty-five dollars and the costs of prosecution, and may be imprisoned until such fine is paid, not exceeding, however, thirty days; and the license of such person, if he shall have one, may, in the discretion of the justice, be adjudged to be forfeited, and a judgment to that effect shall wholly avoid and invalidate such license."

The only question presented for our consideration in the case, and the only one to which we shall direct our attention, is the validity of that portion of the city ordinance above mentioned which authorizes the proceedings against the defendant which we are called upon to review. The defendant claims that, as to such provisions, the ordinance is, 1. "unconstitutional, because in conflict with § 16, art. 1 of the constitution; 2. void, because the common council of the city of Minneapolis have no power, under the charter, to legislate at all on Sunday observance; 3. void, because its provisions are repugnant to the state Sunday law."

By the charter of the city of Minneapolis, the city council "have full power and authority to make, enact, ordain, establish, publish, enforce, alter, modify, amend and repeal all such ordinances, rules and by-laws for the government and good order of the city, for the suppression of vice and intemperance, and for the prevention of crime, as they shall deem expedient; * * * to declare and impose penalties and punishments, and enforce the same against any person or persons who may violate any of the provisions of any ordinance, rule or by-law passed and ordained by them; and all such ordinances, rules and by-laws are hereby declared to be and have the force of laws, provided that they be not repugnant to the laws of the United States or of this state; and for these purposes, shall have the authority, by ordinances, resolutions or by-laws, first, * * to grant licenses and regulate * * all persons vending or dealing in spirituous, vinous or fermented liquors; * * second, * * to restrain any person from vending, giving or dealing in spirituous, fermented or vinous liquors, unless duly licensed by the city council." City Charter of Minneapolis, ch. 4, § 3; Sp. Laws, 1872, pp. 69, 70.

To license and regulate the sale of intoxicating liquors as a beverage is an...