State v. Schmail

• Decision Date: 20 February 1879
• Citation: 25 Minn. 370
• Parties: STATE OF MINNESOTA <I>vs.</I> JOHN SCHMAIL. (Second Case.)
• Court: Minnesota Supreme Court

Page 370

25 Minn. 370

STATE OF MINNESOTA vs. JOHN SCHMAIL. (Second Case.)

Supreme Court of Minnesota.

February 20, 1879.

Appeal by defendant from a judgment of the district court for Dodge county, Lord, J., presiding, affirming a judgment of a justice of the peace, from which the defendant had appealed on questions of law alone. The prosecution was for selling liquor without a license, and in the sentence passed on the defendant in the district court, he was adjudged to pay a fine and the costs in both courts.

B. F. Latta and A. J. Edgerton, for appellant.

Geo. P. Wilson, Attorney General, for the State.

BERRY, J.

This is a criminal prosecution for selling, at the town of Dodge Centre, a quantity of spirituous liquor without a license, "against the form of the statute in such case made and provided."

The prosecution was commenced before the village justice of the village, and upon an affidavit of prejudice, was transferred to a justice of an adjoining town. By section 13 of the village charter (Sp. Laws 1874, c. 13,) it is enacted that "the village council shall have the exclusive right to license persons vending * * spirituous * * liquors within the limits of said village, and persons so licensed shall not be required to obtain a license from the board of county commissioners: provided, the persons so obtaining such license comply with all the requirements, and subject to all the penalties as provided in chapter 16 of the General Statutes of Minnesota; * * and the council shall have full power to restrain any person from vending liquors, unless duly licensed by the village council of said village." The effect of these somewhat obscure provisions we take to be, that no person can lawfully sell spirituous liquors in the village of Dodge Centre without first having obtained license from the village council; that a person who has obtained such license may sell, without obtaining a license from the county commissioners, and that a person selling, without license from the village council, is liable to a prosecution under the provisions of Gen. St. c. 16, for selling without license, unless he has obtained one from the county board, and is also liable to a prosecution under any ordinance which may have been passed by the village council to restrain unlicensed selling.^* The prosecution in this case being for selling "against the form of the statute," etc., was evidently a prosecution under Gen. St. c. 16, for selling without license from the county board, and as respects the matter of license, it was properly instituted and sustained, because it did not appear that the defendant had any license whatever. The burden of proving license was upon the defendant, because, all sales...