State v. Mudie
| Decision Date | 05 February 1908 |
| Citation | 115 N.W. 107,22 S.D. 41 |
| Parties | STATE v. MUDIE. |
| Court | South Dakota Supreme Court |
Error to Circuit Court, Turner County.
E Mudie was convicted of engaging in the business of selling intoxicating liquors without a license, and brings error. Affirmed.
French & Orvis, for plaintiff in error.
S. W Clark, Atty. Gen., L. L. Fleeger, State's Atty., for the State.
Having been convicted of engaging in the business of selling intoxicating liquors without a license, defendant brought the record of such conviction to this court for review by writ of error.
It is contended that the court erred in not sustaining a demurrer to the indictment, on the ground that more than one offense is charged. In this state an indictment or information "must charge but one offense." Rev. Code Cr. Proc § 224. The defendant may demur to the indictment or information, when it appears upon the face thereof "that more than one offense is charged." Id. 272. Section 2834, Rev. Pol. Code, requires every person engaged in the business of selling intoxicating liquors at retail or wholesale to annually pay certain specified sums for license to conduct such business. Section 2837 provides that the county treasurer on receiving the required amount shall deliver to the person paying the same a receipt and notice, which shall be posted up and at all times displayed in a conspicuous place in the room where the business for which the license was paid is carried on. Section 2839 requires the execution of a bond, the sufficiency of which is to be determined by the board of county commissioners. Section 2838 contains the following provisions: The indictment, in substance, charges that defendant was engaged in the business of selling intoxicating liquors at retail without having paid the required license and without having the required receipt and notice posted. Notwithstanding the statute declares that "each violation of any of the provisions" of the article relating to intoxicating liquors "shall be construed to constitute a separate and complete offense," it was not, we apprehend, intended that each act or omission embraced within any expressly defined crime should be regarded as a separate and complete offense. It is an old and familiar rule that where there is in the same statute a particular enactment and also a general one, which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment. 26 Am. & Eng. Ency. 618; Sanford v. King, 19 S.D. 334, 103 N.W. 28. As we understand section 2838, it expressly defines what shall constitute two particular offenses or violations of the statute: (1) Where any person engages in any business requiring the payment of a license under section 2834, without having paid the required license and without having the receipt and notice for such license posted; (2) where any person engages in any such business without having made, executed, and delivered the required bond. It will be observed that the words relating to the license and those relating to the receipt and notice are connected with the conjunctive "and," while the clauses relating to the bond and violations generally are separated from each other and the preceding clauses by the disjunctive "or." No reason is apparent for assuming that the words "and" and "or" were not employed with grammatical accuracy. Necessarily no valid receipt could be posted without the payment of the license, and business cannot be lawfully conducted without the posting of a valid receipt. Payment and posting are therefore naturally and logically made constituent elements of one and the same offense. In other words, the statute requires the posting of a receipt, necessarily involving payment of the license, by every one who engages in the business of selling intoxicating liquors. It is the omission to comply with this requirement which constitutes the first misdemeanor defined in section 2838, and is the one charged in this case. So the demurrer was properly overruled. The contention that the facts stated in the indictment and agreed statement of facts upon which the action was tried do not constitute a public offense because they do not show whether a license could have been procured by any one in Centerville, where the business was conducted, is not tenable. The law "prohibits every person who has not first obtained a license from engaging in the sale of intoxicating liquors at retail anywhere within the boundaries of this state." State v. McIlvenna (S. D.) 113 N.W. 878. Therefore the reason why defendant had not procured a license was wholly immaterial, and what is not material need never be alleged or proved. Territory v. Pratt, 6 Dak. 483, 493, 43 N.W. 711.
It appears from the agreed statement of facts that defendant was the secretary and treasurer, having general management of the affairs, of a domestic corporation named the Centerville Commercial Club, incorporated June 30, 1906, "to promote and encourage a fraternal, benevolent and charitable spirit among its members, and to foster deeds of charity one towards the other"; that such corporation "was organized and carried on in good faith and for the purposes mentioned and set forth in its articles of incorporation and by-laws"; that it rented two rooms, one being known as the "clubroom," the other as the restaurant payment therefor a monthly rental of $45; "that said rooms were fitted up with tables, chairs, bar, back bar, and ice box, and said bar contained fixtures, consisting of glasses, bottles, spoons, and other implements...
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