State v. Hanley

25 Minn. 429, 1879 Minn. LEXIS 19

• Court: Supreme Court of Minnesota
• Decided: January 17, 1879
• Status: Published

Opinion

Berry, J.

Sp. Laws 1877, c. 51, authorizes the legal voters of the village of Kasson, in Dodge county, “to vote upon, and determine for themselves, the question whether license for the sale of intoxicating liquors in said village shall be granted in said village or not.” It further provides for the submission of the question of granting license, to said voters, and that if a majority of votes be cast against license, “no license for the sale of intoxicating liquors in said village shall be granted by the common council of said village, or the board of county commissioners of Dodge county.” Section 3 provides that “in case the legal voters of the village shall determine * * * that no license for the sale of intoxicating’liquors in said village shall be granted, any person thereafter who shall sell, barter or dispose of any spirituous, malt, vinous, fermented or intoxicating liquors, within the corporate limits of said village, for other than medicinal purposes, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall pay a fine of not less than $25, nor more than $100, with costs of prosecution, for each offence, and be imprisoned in the county jail until said fine and costs are paid, not exceeding ninety days.” As licenses can be granted only by the county board or the common council, the effect of. all this is, that when the legal voters have voted against license, no license can be granted for the sale, or other disposition of intoxicating liquor in the village of Kasson. If, after a vote against license, any person sell intoxicating liquor (not for medicinal purposes) in the village of Kasson — as the defendant did in the case at bar — the offence which he commits is •the offence of selling after the vote against license, and his liability therefor arises under section 3, of chapter 51, above quoted. He is not liable under the general law, (Gen. St. c. 16,) for selling intoxicating liquor without having obtained a license from the county board of Dodge county, for, clearly, that law has reference only to sales by persons who are permitted to apply to such board for license, and to whom licenses might lawfully be granted. When a person sells liquor (for other than medicinal purposes) in the village of Kasson, where no license to so sell can be obtained by anybody under any circumstances, there is a manifest incongruity in charging him with the offence of selling without a license. There can be no such offence, in the village of Kasson, as selling without a license, for other than medicinal purposes. A sale in such village, other than for medicinal purposes, is the offence of selling after a vote against license, and the offence should be described accordingly. This was the defendant’s offence in this ■case. He is charged in the indictment, under the’ general l'aw, with selling without license, and, upon such indictment, he was found guilty and sentenced accordingly. From the foregoing views, it follows that the indictment is not sustained by the facts, and that the conviction-and sentence are therefore erroneous.

Judgment reversed, and defendant discharged.