City of Albia v. O'Harra

64 Iowa 297

Opinion

Adams, J.

1. practice couSPferror without prejudice. I. Tbe defendant insists that tbe court erred in overruling certain cliallanges to jurors. The ground of challenge was that the jurors challenged had at the same term of court sat in a case of the city , against the same defendant, where the charge was the same and the facts the same, except that the sale of liquor was made to a different person, and the jury in that case had found against the defendant, and the jurors challenged stated that, if they found the charge the same and the facts the same as in the other case, except that the liquor was sold to a different person, they should feel constrained to find against the defendant in this case.

Whether the ground of challenge was good we need not determine. If we should concede that it was, we could not reverse, if it appears that the defendant was not prejudiced; and we reach the conclusion that hte was not.

The case has this peculiarity: There is no dispute as to the fact of sale by the defendant, nor as to the place where sold. The defendant sold beer to one Wilkin at his saloon, and his saloon was outside of the city limits of Albia, but within two miles thereof, if the limits were where the city claimed that they were. Now, the evidence introduced was either sufficient to sustain the-claim beyond controversy, or it was wholly insufficient; and as to whether it was sufficient or not is a question of law.

2, INTOXTCATlire liquors: cityiimitsS-iimts iiow shown. II. To show wliere the corporate limits were, the city introduced as a witness Mr. James Coen, the mayor of the city. He defined the limits, but showed that he ** J based his statement wholly upon what he knew as ^Ie es^eiR to which the city exercised jurisdiction by taxation, etc. The court instructed the jury, in substancie, that they might regard, for the purpose of the ease, the corporate limits as embracing all territory over which the city exercised jurisdiction for city purposes, under a claim of right.

The defendant insists that the court erred in giving this instruction. His theory is that the- corporate limits are those only which have been legally established, and embrace only such territory as lies within the city’s rightful jurisdiction. His position is that the locality of the sale, as within or without the two mile limits, pertains, not to a mere question of venue, but to the essence of the offense, and that, if we construe the statute as this consideration demands, we cannot hold that mere assumed jurisdiction is sufficient to establish corporate limits within the meaning of the statute.

The statute is in these words: “ It is hereby made unlawful for any person * * * * to sell * * * beer or other malt or vinous liquors within two miles of the corporate limits of any municipal corporation.” Chap. 119, Laws of 1878. The question presented is as to what shall be deemed corporate limits.within the meaning of this statute.

The case before us is one where, as we infer, there was an attempt to extend the corporate limits, but where, possibly, the proceedings were not legal, but where the city, nevertheless, proceeded to exercise jurisdiction as if they were legal, and the territory, for practical purposes, had been treated as within the city. The plaintiff contends that we cannot try the legality of the proceedings in a case like this.

In our opinion, the plaintiff’s position is well taken. This case is one of which a justice of the peace has jurisdiction, and is not a suitable action in any way to test corporate rights. Whatever territory the city maintains jurisdiction over must be regarded, we think, as de facto corporate territory. If the right of jurisdiction is to be tested, it should, we think, be done by a proceeding that would be binding upon all, and final. We think that the court did not err in the instruction given.

3. cities and nance! evidence of publication. III. The defendant contends that the ordinance under which the city claims to act does not appear to have been duly published. The ordinance in question, as contained in the ordinance book of the city, was introduced. Attached thereto appears to’ have been the original affidavit of publication. Neither the ordinance nor affidavit is set out in the abstract. But it appeal’s that the record of the ordinance is in manuscript, and is not the printed copy published. ' But attached proof of publication is sufficient if it indentifies the ordinance; and it is not pretended that it does not. We see no error, and the judgment must be

Affirmed.