Town of Eldora v. Burlingame

• Decision Date: 18 October 1883
• Citation: 17 N.W. 148,62 Iowa 32
• Parties: THE TOWN OF ELDORA v. BURLINGAME
• Court: Iowa Supreme Court

17 N.W. 148

62 Iowa 32

THE TOWN OF ELDORA v. BURLINGAME

Supreme Court of Iowa, Dubuque

October 18, 1883

Appeal from Hardin District Court.

THE defendant was convicted upon an information filed with the mayor of plaintiff charging him with the violation of a town ordinance forbidding the sale of vinous, malt and intoxicating liquors. Upon an appeal to the district court, a like judgment was entered.

AFFIRMED.

Huff & Pillsbury, for appellant.

No appearance for appellee.

OPINION

BECK, J.

I.

The information is in two counts, the first charging defendant with selling, contrary to a town ordinance "intoxicating, malt, fermented and vinous liquors to-wit: beer, porter ale, wine and mixed intoxicating liquors." The second count charges the sale of "spirituous, malt, fermented, intoxicating and mixed liquors, to-wit: beer, ale, wine, and mixed intoxicating liquors," contrary to the provisions of the ordinance. In the district court the defendant demurred on the grounds First, the information charges a crime punishable by the laws of the state; second, each count is bad for duplicity, in that it charges more than one offense. The demurrer was overruled, which is now complained of by defendant.

II. It is alleged that the information charges the selling of intoxicating liquors other than beer, ale and wine, which is an offense punishable under the law of the state. For the purposes of the case, let this position be admitted. But the information also charges the sale of beer, ale and wine, and the sale of these liquors may be punished by the town ordinance. This cannot be and is not denied. We have the case, then, of the charge of two offenses, or two classes of offenses, one of which is punishable under the town ordinance and the other is not. The allegations as to the offense not punishable under the information will be regarded as mere surplusage, just as though it had included a charge of treason or other felony. But this would not affect the charge of the offense within the jurisdiction of the town, and its judicial officer, the mayor.

III. It is insisted that both of the counts are bad for duplicity, in that each count charges more than one offense. So far as this objection is based upon the fact that the information charges the offense of selling spirituous liquors, which is punishable only under the statutes of the state, it is answered by the consideration above stated, namely, that the allegation of such charge is mere...