State v. Van Vliet

• Decision Date: 12 December 1894
• Parties: STATE v. VAN VLIET ET AL.
• Court: Iowa Supreme Court

92 Iowa 476

61 N.W. 241

STATE

v.VAN VLIET ET AL.

Supreme Court of Iowa.

Dec. 12, 1894.

Appeal from district court, Mahaska county; D. Ryan, Judge.

Suit in equity to enjoin a liquor nuisance. The district court sustained a demurrer to the plaintiff's petition, and it appeals. Reversed.Byron W. Preston, for the State.

Seevers & Seevers, Bolton & McCoy, and J. C. Williams, for appellees.

DEEMER, J.

The petition is in the usual form of petitions to enjoin persons from maintaining liquor nuisances under the prohibitory liquor laws. It alleges, in substance, that the defendants, in certain buildings in Mahaska county, are carrying on the unlawful sale and keeping for sale of intoxicating liquors, and that they have since April 1, 1894, therein unlawfully sold and kept for sale such liquors, and have created and established and are now conducting a nuisance thereat. The demurrer is the general equitable one “that the facts stated do not entitle the plaintiff to the relief demanded.” In support of the court's ruling, the appellees contend that chapter 62 of the Laws of the 25th General Assembly, familiarly known as the “Mulct Law,” is in force over the entire state, and that plaintiff must plead and prove that such law is not in force in the particular locality in which the nuisance is alleged to exist, or to plead and prove that some of the provisions of that law have been violated; that the selling of intoxicating liquors, without more, is not a nuisance under existing statutes; and that, conceding some of the provisions of the mulct law have been violated, the remedy by injunction will not lie, because not authorized by statute. On the part of the state it is insisted that prohibition of the traffic in intoxicants is the general rule, and that the penalties, forfeitures, and rigors of the law are suspended only upon certain conditions, and that it is for the defendant to plead and prove the happening of these conditions.

It is a rule in both civil and criminal pleadings that, where an action is predicated upon a statute to which there is an exception or proviso, it is sufficient for the pleader to state only so much as will make out a prima facie case; and, if the proviso or exception be found in a separate section or in a subsequent substantive enactment, it is a defense, and should be left to the other party; but, if it be matter of exception contained in the enacting or prohibition clause, it is part of the thing prohibited, and the pleading must show that this matter of exception does not cover the act complained of. The rule is often stated thus: “The difference is, when the exception is embodied in the body of the clause, he who pleads the cause ought to plead the exception; but when there is a clause for the benefit of the pleader, and afterwards follows a provision which is against him, he shall plead the clause, and leave it to his adversary to show the proviso.” State v. Beneke, 9 Iowa, 203;Com. v. Hart, 11 Cush. 130;U. S. v. Cook, 17 Wall. 168;State v. Abbey, 29 Vt. 60;Teel v. Fonda, 4 Johns. 304. In Steel v. Smith, 1 Barn. & Ald. 94, the rule is thus announced: “When there is an exception so incorporated with the enactingclause that the one cannot be read without the other, then the exception must be negatived.” This same rule applies to provisos and exceptions in contracts. Freeman v. Insurance Co., 144 Mass. 572, 12 N. E. 372. So where a statute prohibits the sale of liquor under certain circumstances, and, in a proviso at the end of a subsequent section, allows the sale of wine manufactured from grapes grown in the state, or beer, ale, or cider, it is not necessary that the indictment should allege that the liquor sold was not of the excepted classes. Becker v. State, 8 Ohio St. 391. Again, in a complaint under a statute for not keeping a saloon closed after 9 o'clock at night, it was held not necessary to negative any action by the town council extending the time for closing until 10 o'clock, as permitted by a proviso of the act. People v. Richmond, 59 Mich. 570, 26 N. W. 770. And if a statute prohibits the sale of liquor under certain circumstances, and in another section or proviso authorizes a druggist to sell with or without a license, it is not necessary to allege that the defendant was not a druggist. State v. Taylor, 73 Mo. 52;People v. Robbins, 70 Mich. 130, 37 N. W. 924;State v. Jaques, 68 Mo. 260. It has also been held, under license laws, that if the question of license is not material to the offense, if the elements of the offense are complete without the additional fact of the sale having been unlicensed, the indictment need not allege that defendant had no license. State v. Collins, 11 Iowa, 141. See, also, Com. v. Bennett, 108 Mass. 27;Baeumel v. State (Fla.) 7 South. 371.

Keeping these rules well in mind, we turn to this recent act of the legislature to determine whether it has repealed the prohibitory statutes or not, and to discover if there is anything in it which requires the plaintiff to negative the provisions thereof. It is well to remember that the prohibitory law is not repealed in express terms by this new enactment, nor is there such an irreconcilable conflict between the old and the new enactments as that we can say there is a repeal by implication. True, there has been a modification of the old law, by a statute which is general in its application, and which permits municipalities, under certain conditions, by virtue of the police power vested in them, to suspend the operation of the penalties, and for forfeitures of the old. The first 16 sections of the act in question (chapter 62, Acts 25th Gen. Assem.) need not be referred to further than to say that they relate to the imposition of a tax against any real property, or the owner thereof, whereon intoxicating liquors are sold or kept with intent to be sold in this state. Section 16 provides that “nothing in this act contained shall be in any way construed to mean that the business of the sale of intoxicating liquors is any way legalized, nor is the same to be construed in any manner or form as a license, nor shall the assessment or payment of any tax for the sale of liquors, as aforesaid, protect the wrongdoer from any penalty now provided by law, except that on conditions hereinafter provided certain penalties may be suspended.” Section 17 then provides: “In any city of 5,000 or more inhabitants, the tax hereinbefore provided may be paid quarterly. * * * And after a written statement of consent signed by a majority of the voters residing in said city, who voted at the last general election, shall have been filed with the...