State v. Same
| Decision Date | 02 June 1892 |
| Parties | State of Minnesota v. W. H. Harris. Same v. Edward A. O'Brien. Same v. Martinus Jevne. Same v. Charles L. Loomis. Same v. Charles H. Wood. Same v. Edward O. Brown. Same v. Thomas Gallagher et al. Same v. Patrick Lyons |
| Court | Minnesota Supreme Court |
May 10 1892, Argued
Rehearing Denied 50 Minn 128 at 138.
Appeal by defendant, Martinus Jevne, from an order of the Municipal Court of the city of Minneapolis, Elliott, J., made October 1, 1891, denying his motion for a new trial.
Complaint was made in that court that on August 16, 1891, defendant being the proprietor of a saloon where intoxicating liquors were sold by the glass, did fail and omit to close his said saloon and to keep it closed during that day, which was Sunday; contrary to an ordinance of that city. The ordinance provided that every saloon and bar or other place where liquors are sold by the glass or drink shall be closed and kept closed during the whole of every Sunday; and if any person shall violate this provision he shall on conviction before the Municipal Court be punished by a fine, not less than $ 25, nor more than $ 100; or imprisoned in the city prison, or county jail, or in the city workhouse, for not less than thirty, nor more than ninety days. The court upon such conviction, if the person convicted hold a license, may upon the first conviction, and shall upon the second, revoke it pursuant to the city charter, ch. 4, § 16.
The defendant being brought into court pleaded not guilty, and asked for a jury trial. This the court refused, and ordered the prosecution to proceed without a jury. To this defendant excepted. He also objected that the ordinance was void because the city charter did not authorize the city council to enact it, and because the punishment is in excess of the power given the council by the charter. The objections were overruled and he excepted. He further objected that the Municipal Court did not have jurisdiction because the punishment might be greater than $ 100 fine, or ninety days in jail, to-wit, revocation of his license to sell intoxicating liquors. This objection was also overruled and he excepted. The city offered its evidence to support the complaint. Defendant offered no evidence. He was found guilty and was sentenced to pay $ 25 fine, and in default of payment to be committed to the workhouse for thirty days. He moved the court to grant him a new trial. It was denied, but proceedings on the conviction were stayed pending the appeal to this court. The other above entitled cases were of a similar character. Counsel on the argument stated that more than sixty other appeals from the same court upon convictions under this ordinance were pending in this court, and that all of them would abide the decision of this.
In each of the above-entitled cases the judgment is affirmed.
Lars M Rand, Robert Jamison, Marcus P. Hayne, L. W. Gammons, Johnson & Rinehart, Odell & McMahon, and Meagher & Betts, for appellants.
The court erred in refusing defendant's request and demand for a jury trial. Benson v. State, 5 Minn. 19, (Gil. 6;) State v. West, 42 Minn. 147; Platteville v. Bell, 43 Wis. 488; McGear v. Woodruff, 33 N. J. Law, 213; Lewis v. State, 21 Ark. 209; State v. Peterson, 41 Vt. 504; Plimpton v. Town of Sumerset, 33 Vt. 292; Creston v. Nye, 74 Iowa 369.
The ordinance is unreasonable and invalid. The Municipal Court of the City of Minneapolis has construed the ordinance to mean that it is immaterial for what purpose the place is open, if it is not kept closed during the prohibited time the penalty of the ordinance is incurred. Under such construction no person can open the door of, or enter his saloon on Sunday for any purpose, without being guilty of a violation of the ordinance. In re Ah Jow, 29 F. 181; Yick Wo v. Hopkins, 118 U.S. 356.
The ordinance is void because its provisions are not germane to the title. It embraces several subjects, each subject a separate offense, while the title is; "an ordinance to license and regulate all persons vending, dealing in, or disposing of, spirituous, vinous, fermented or malt liquors, and to repeal ordinances regulating the same." Commonwealth v. Fontain, 127 Mass. 452; Morgan v. State, 81 Ala. 72; In re Hauck, 70 Mich. 396.
The provisions of Minneapolis city charter to license the sale of liquors, were superseded by the Acts passed in 1887 to amend 1878 G. S. ch. 16. By strong implication they operate to repeal all acts passed prior thereto. The language is: all the provisions shall also apply to the municipal corporations, anything in the charter or ordinances to the contrary notwithstanding. Laws 1887, ch. 81. State v. Peterson, 38 Minn. 143; Oshkosh v. Schwartz, 55 Wis. 483; Oshkosh Fire Dep't v. Tuttle, 48 Wis. 91.
The punishment provided for in the ordinance is different from the punishment prescribed by the statute for the same offense, and is therefore void. City of St. Paul v. Byrnes, 38 Minn. 176; State v. Nolan, 37 Minn. 16.
The court erred in assuming jurisdiction to try and determine said cause, there having been no presentation or indictment of a grand jury.
Moses E. Clapp, Atty. Genl., Robert D. Russell, and L. A. Dunn, for respondent.
The revocation of the license is no part of the judgment or punishment within the meaning of the constitution. It is rather a consequence of the judgment of conviction. The license is neither a contract between the city or state, and the licensee, or property in any legal or constitutional sense. It is simply a personal, unassignable privilege to do what is otherwise unlawful or prohibited. The license is issued in the exercise of the police power of the state, and is subject to the direction of the state, which may modify, revoke, or continue it as may be deemed fit. Metropolitan Board of Excise v. Barrie, 34 N.Y. 657; Ballentine v. State, 48 Ark. 45; Com. v. Brennan, 103 Mass. 70; Calder v. Kurby, 5 Gray, 597; Brockway v. State, 36 Ark. 629; Hurber v. Baugh, 43 Iowa 514; Columbus City v. Cutcomp, 61 Iowa 672; State v. Larson, 40 Minn. 63; Wiggins v. City of Chicago, 68 Ill. 373; Schwuchow v. City of Chicago, 68 Ill. 444.
The fact that an ordinance punishes acts that are made penal by the general laws, does not of itself invalidate the ordinance. The same act may be an offense both against the state and the ordinance. State v. Ludwig, 21 Minn. 202; State v. Charles, 16 Minn. 474, (Gil. 426;) State v. Lee, 29 Minn. 445; State v. Oleson, 26 Minn. 507; City of Mankato v. Arnold, 36 Minn. 62; State v. West, 42 Minn. 147; Moore v. City of Minneapolis, 43 Minn. 418.
The principal points to be decided in several of the eight cases, entitled as above, are the same. These will be first considered, after which attention will be directed to some matters which are peculiar to some of the individual cases.
These were all prosecutions in the municipal court of the city of Minneapolis for violations of an ordinance of the city in keeping open, on Sunday, saloons or hotel bars, places where liquors are sold by the glass.
It is urged that the defendants had the constitutional right of trial by jury, which the court refused to allow. This was the precise question involved in City of Mankato v. Arnold, 36 Minn. 62, (30 N.W. 305,) the decision in which must be accepted as a determination of the law upon this point. The statutory provisions relating to the summary procedure in the municipal court of the city of Minneapolis in such cases (Sp. Laws 1889, ch. 34, § 7) are like those relating to the city of Mankato, (Sp. Laws 1885, ch. 119, § 6,) referred to in the Arnold Case. These cases are in no way distinguishable from that. In commenting upon the ground upon which that decision rests, in State v. West, 42 Minn. 147, (43 N.W. 845,) it was not intended to question, much less to overrule, what had been decided in City of Mankato v. Arnold, as is apparent from the parenthetical clause on page 150.
Section 13 of the ordinance under which the defendants were convicted provides that any person convicted of a violation of any of its provisions shall be punished by a fine of not less than $ 25 nor more than $ 100, or be imprisoned in the city prison or county jail or city workhouse for not less than thirty days nor more than ninety days; and it is added that "the court upon such conviction, if the person so convicted shall hold a license under the provisions of this ordinance, may upon the first conviction, and upon the second conviction shall, in addition to the punishment above provided, revoke such license, as authorized and required to do in section 16, ch. 4, of the city charter." This provision relating to the revocation of licenses does not render the ordinance void, nor does it change the grade of the offense or of the punishment, so as to place such causes beyond the jurisdiction of the municipal court, or so as to entitle the accused to a jury trial. The charter expressly authorizes this provision of the ordinance. But the theory of the defendants is that the revocation of a license upon conviction of a violation of the ordinance constitutes punishment in addition to the fine or imprisonment which may be imposed, and hence that the case is placed beyond the constitutional jurisdiction of justices of the peace, and that the defendant cannot be held to answer therefor unless on the presentment or indictment of a grand jury. The fault of the argument lies in the premise that the revocation of the license is a "punishment," within the meaning of that word in the clause of the constitution defining the limit of the jurisdiction of justices of the peace. It is not a punishment in that sense of the word. The license is a mere privilege conferred to pursue a business...
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